Liberty and Union

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Chapter 1

The Norman Conquest of England (1066) The Bayeux Tapestry is an embroidered cloth more than 200 feet in length. Commissioned in the 1070s, it depicts the events of the Norman Conquest of England beginning with a visit by Prince Harold of England to the ducal court of Normandy and ending with the Norman victory at the Battle of Hastings. The Tapestry is a rich and enigmatic work that has both enlightened and baffled researchers for centuries. The original is housed in a museum at Bayeux, Normandy. A copy is held in Reading, England. The Museum of Reading offers a scene-by-scene explanation of the Tapestry at the following link.

Scene-by-Scene Bayeux Tapestry

Magna Carta (1215) Magna Carta, or the Great Charter of Liberties, is one of the foundational documents of constitutional government in the English-speaking world. Forced upon King John by his rebellious barons, the charter guaranteed the life, liberty, and property of the English nobility against the exercise of arbitrary power by the king. However, subsequent generations, both in England and abroad, have viewed it as a touchstone for the political liberty of people everywhere. The guarantees of Magna Carta were central to American constitutional claims during the Revolutionary Era and remain an essential part of legal discourse to this day.

Text of Magna Carta with Glossary

Background on Magna Carta

Photographic Viewer of 1215 Copy of Magna Carta Held by British Library

National Archives & Records Administration, “Magna Carta and Its American Legacy

Henry de Bracton De legibus et consuetudinibus Angliae (On the Laws and Customs of England) was the most enduring legacy of Henry de Bracton, a thirteenth-century English judge. Compiled between the 1220s and 1250s, the work attempted for the first time to present an overview of English law. It is as memorable for its depth of treatment as for its breadth.

Background and Photographs of the Manuscript

Text of the Document in English and Latin

Statute of Westminster (1285) In 1285, Edward I approved the Statute of Westminster. The law consisted of fifty chapters concerning the administration of royal justice. Chapter XXIV, “Writs in Consimili Casu,” helped consolidate and systematize the writ system.

Statute of Westminster (1285): Download

Divine Right of Kings The first Stuart kings, more than any English monarchs before them, invoked the divine right of kingship to justify their claims of royal absolutism. In 1598, James I published The Trew Law of Free Monarchies as a principled defense of divine right monarchy. In the same year, he completed the Basilikon Doron (The Kingly Gift), a book of practical advice rooted in divine right theory, which he addressed to his son and heir Henry. Henry would die before his father, leaving his younger brother Charles to inherit the throne and his father’s divine right pretensions.

The Trew Law of Free Monarchies

Excerpts of the Basilikon Doron

Calvin’s Case (1609) Calvin’s Case concerned the status of Scots in England upon the accession of James VI of Scotland to the English throne in 1603. English jurist Edward Coke ruled that Scots born prior to James’s accession were aliens in England, whereas Scots born after were English subjects. The decision contains an important discussion of the relationship between natural law and the common law of England.

Text of Calvin’s Case (1609)

Dr. Bonham’s Case (1610) In Dr. Bonham’s Case, Sir Edward Coke struck down an act of parliament that conferred upon a private body—the London College of Physicians—the power to try and impose penal sanctions on individuals. Coke memorably ruled, “the Common Law doth controll Acts of Parliament, and somtimes shall adjudge them to be void: for when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will controll it, and adjudge such Act to be void.” The decision in Bonham’s Case established a precedent for the principle of judicial review in America.

Text of Dr. Bonham’s Case (1610)

Petition of Right (1628) In response to King Charles I’s practice of extorting forced loans from his subjects by billeting troops in the homes of those who refused, parliament presented the Petition of Right to the king. The document, which restated traditional political liberties dating back to Magna Carta, was authored by Sir Edward Coke. Second only to Magna Carta as a seminal constitutional document, it influenced political thought in both Britain and America.

Text of the Petition of Right (1628)

The Putney Debates on the Constitution of England From October 28 to November 9, 1647, soldiers and civilians alike met in London to debate proposed constitutional changes, ranging from a reformed monarchy to full democracy. It was at the Putney Debates that the Levellers emerged as a force to be reckoned with during the English Civil War.

Online Companion to the Putney Debates Exhibition at St. Mary’s Church, Putney

Introduction to Prominent Levellers

Execution of Charles I In January 1649, parliament tried and condemned King Charles I to death for violating the fundamental law of England. Although Charles denied the jurisdiction of the court to try an anointed king, he was nevertheless condemned. On the scaffold Charles continued to challenge the proceedings against him, insisting, “A Subject and a Soveraign, are clean different things.”

Death Warrant of Charles I

Speech of Charles I Upon the Scaffold

Religious Persecution The Library of Congress explores the brutality and pervasiveness of religious persecution in Europe through the online exhibit “Religion and the Founding of the American Republic.”

Religion and the Founding of the American Republic

Habeas Corpus Act of 1679 The Habeas Corpus Act of 1679, passed during the reign of Charles II, required royal judges to issue writs of habeas corpus and established penalties for their refusal to do so. The act would be adopted almost verbatim by colonial assemblies.

Text of the Habeas Corpus Act of 1679

The English Bill of Rights The Glorious Revolution of 1689 brought an end to nearly a century of turbulent Stuart rule and initiated a period of parliamentary ascendancy in government. The Bill of Rights of 1689 set clear limits on the power of the Crown to act without the consent of parliament. Specifically, the Crown might not pass laws or levy taxes without parliamentary consent. The guarantees of the English Bill of Rights resonated across the Atlantic and were cited to justify separation from England during the American Revolution.

Text of the English Bill of Rights

Background on the English Bill of Rights

John Locke’s Second Treatise of Government Locke’s Second Treatise, published in 1689, captured the political spirit of the Glorious Revolution and justified the overthrow of James II. Locke argued that all political power is derived from the people through a twofold social contract. First, people leave their free and independent state of nature by agreeing to enter into civil society with one another. They then institute political society through a political contract whereby they agree to a particular form of government. If the rulers chosen by the people abuse their power, the people reserve the natural right to replace them. Locke’s theories of political accountability and the primacy of man’s rights to life, liberty, and property had a lasting impact on the development of political thought in Great Britain and America.

Text of the Second Treatise of Government

Government by Charter Colonial government was, from the outset, rooted in written compacts. Each colony had its own charter enumerating the rights of its settlers and spelling out the terms under which settlers could acquire title to land, participate in public affairs, and even how they might worship. Because no rights other than those specifically guaranteed could be lawfully claimed, the charters were crucially important in every colony. By the eighteenth century, Americans regarded their charters as political contracts in the constitutional sense that they recognized and confirmed the natural rights of people with respect to life, liberty, and property. Here are some examples.

First Charter of Virginia (1606)

Mayflower Compact (1620)

Charter of Massachusetts Bay (1629)

Charter of Maryland (1632)

Fundamental Orders of 1639 (Connecticut)

Agreement of the Settlers at Exeter in New Hampshire (1639)

Fundamental Agreement of Colony of New Haven (1639)

Plantation Agreement at Rhode Island (1640)

Fundamental Constitution of Carolina (1669)

William Penn’s Charter of Liberty (1682)

Massachusetts Body of Liberties (1641) The Massachusetts Body of Liberties of 1641 was a legal code that anticipated by a century and a half most of the essential guarantees that would be enshrined in the United States Bill of Rights. Drafted in large part by Massachusetts lawyer Nathaniel Ward, the Body of Liberties guaranteed due process of law and the right of jury trial, prohibited double jeopardy, and banned cruel and unusual punishments.

Text of the Massachusetts Body of Liberties

The Spirit of Laws (1748) Baron de Montesquieu’s work, The Spirit of Laws, was very influential in the American colonies. It advanced the theory that laws must be consistent with the character of the people they serve and with the environment they occupy. In a chapter on the Constitution of England, Montesquieu argued that key to the survival of any free republic is the existence of checks and balances to prevent abuses of power. Giving as an example Britain’s constitutional monarchy, he wrote, “Here, then, is the fundamental constitution of the government we are treating of. The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative. . . These three powers should naturally form a state of repose or inaction: but, as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert.”

Checks and Balances in The Spirit of Laws, Book XI, Ch. VI

Commentaries on the Laws of England (1753) William Blackstone’s Commentaries on the Laws of England compiled and harmonized the common law of England in a four-volume treatise that was widely read by legal practitioners and ordinary people alike. In particular, the Introduction and Book I presented Blackstone’s view of the common law as the guarantor of personal and political liberty.

Text of the Commentaries on the Laws of England (1753)

Freedom of Speech in the American Colonies The trial of John Peter Zenger was one of the earliest and most high-profile tests of liberty in the American Colonies. New York printer John Zenger was accused of seditious libel for articles he had printed in his newspaper criticizing Governor William Crosby. Represented by one of the most able attorneys in the colonies, Zenger was acquitted and the principle of press freedom was vindicated. An account of the trial may be found in this contemporary pamphlet.

“A Brief Narrative of the Case and Tryal of John Peter Zenger” (1736)

Chapter 2

American Culture in the Eighteenth Century American colonial culture during the eighteenth century was vibrant, rich, and cosmopolitan. Fine arts and folk arts flourished. Printers and engravers published newspapers, books, and broadsides. Coffeehouses and taverns were centers for the exchange of ideas and information, and the consumer culture of the colonies was integrated into the global commercial network of the British Empire.

Audio Files of Eighteenth-Century American Music

Art and Identity in the British North American Colonies, 1700–1776

Coffee, Tea, and Chocolate in Early Colonial America

Edmund Burke’s Speech to Parliament on Conciliation with the Colonies Irish-born Edmund Burke (1729–1797) is regarded as one of the most influential political thinkers in English history. As a member of parliament, he opposed the government’s policies with respect to the American colonies and urged reconciliation. His famous speech of March 22, 1775, proved prophetic in his warning: “[The spirit of liberty] has grown with the growth of the people in your colonies, and increased with the increase of their wealth; a spirit, that has kindled this flame that is ready to consume us.”

Text of Edmund Burke’s Speech to Parliament on Conciliation with the Colonies

The Seven Years’ War The Seven Years’ War (1756–1763), also known as the French and Indian War, pitted the major powers of Europe against one another in global conflict. Under the Treaty of Paris, which ended the war, Britain received all of Canada and the present-day United States east of the Mississippi River. Although this opened vast territories for British settlement, George III’s Proclamation of 1763 prohibited colonials from settling in the Ohio Valley. The proclamation, which was codified into law by parliament, sought to win peace with Indian tribes in the area, but it provoked bitter complaints from some colonies that the act violated their charters. Tensions between the colonials and Britain intensified as parliament began demanding that the North American colonies contribute to paying off the war debt through newly enacted revenue taxes.

Maps of the French and Indian War

Impact of the Proclamation Line of 1763

Text of the Royal Proclamation of 1763

Article, “Dodging the Check,” by Andrew G. Gardner

The Sugar Act, the Molasses Act, and the Currency Act Among the revenue taxes Britain levied on her North American colonies were the Sugar Act, the Molasses Act, and the Currency Act. The Sugar Act and the Molasses Act strengthened customs regulations in order to curtail colonial smuggling. The Currency Act prohibited the colonies from printing their own currency, making it more difficult for colonials to pay off their debts with cheap money. The colonials predictably responded to these measures with great hostility, presaging the claims that would be made during the Revolution. On May 31, 1764, a group of Boston merchants wrote in The Boston News-Letter and New-England Chronicle, “if our trade may be taxed, why not our lands? Why not the produce of our lands and everything we possess or make use of? This we apprehend annihilates our charter right to govern and tax ourselves. It strikes at our British privileges which, as we have never forfeited them, we hold in common with our fellow subjects who are natives of Britain. If taxes are laid upon us in any shape without our having a legal representation where they are made, are we not reduc’d from the character of free Subjects to the miserable state of tributary slaves?”

Text of the Molasses Act and the Sugar Act of 1764

Historical Background on the Sugar Act (with Links to Supporting Primary Sources)

Text of the Currency Act of 1764

Colonists Respond to the Sugar & Currency Acts of 1764 (Primary Sources)

Royal Governor Thomas Pownall Warns His Countrymen of the Colonists’ Constitutional Claims

Documents Relating to the Triangular Trade The Triangular Trade linked Great Britain, West Africa, and the British North American and Caribbean colonies in a transatlantic economy of slaves, rum, sugar, and manufactured goods. The Middle Passage, so called because it was the second leg of the triangular trade, brought slaves from West Africa to North America. The mortality rate of the trade’s human cargo is estimated at between 11 and 13 percent.

Colonial Trade Routes and Goods

The Atlantic: Slavery, Trade, Empire, an Exhibition of Art and Artifacts of the Triangular Trade at the National Maritime Museum (England)

Assessing the Slave Trade (Transatlantic Slave Trade Database)

Images of Slave Ships and the Atlantic Crossing (Middle Passage)

The Medford Slave Trade Letters (1759–1765)

Smuggling in the Colonies As Britain intensified trade controls on her North American colonies, Americans responded by ramping up smuggling activities. The Connecticut shoreline and Long Island Sound were dotted with smugglers’ coves through which enterprising traders circumvented British customs duties. Royal authorities sought to suppress smuggling by issuing writs of assistance to customs officials. The writs were generalized search warrants allowing customs officials to search any vessels or premises believed to contain smuggled goods. They also enabled officials to compel ordinary citizens to assist in the searches. The writs encountered a storm of hostility in the colonies, culminating in James Otis’s famed defense of liberty against intrusive and arbitrary searches and seizures.

Article, “Connecticut in the Golden Age of Smuggling,” by Thomas Truxes

Text of a Letter from a Merchant in London (Josiah Tucker) to His Nephew in North America (1774)

Text of James Otis’s Against Writs of Assistance (1761)

Stamp Act The 1765 Stamp Act imposed a tax on printed materials in the North American colonies. As the first direct revenue tax levied on the colonies by parliament, the measure occasioned intense controversy on both sides of the Atlantic. The thirteen colonies that would eventually rebel against Britain sent delegates to New York City to discuss a coordinated response to the tax. Known as the Stamp Act Congress, the meeting underscored for the participants how much the American colonies had in common and set the stage for coordinated resistance against British rule. The British Parliament also vigorously debated the wisdom and constitutionality of the tax, even questioning Benjamin Franklin on the issue. The Stamp Act was repealed in 1766, delaying for almost a decade the culmination of the conflict over taxation without representation.

Text of the Stamp Act

Selections from the Parliamentary Debate on the Stamp Act

“The Critical Time Is Now Come”: Colonists Respond to the Stamp Act, 1765–1766 (Primary Sources)

Transcript of the Examination of Benjamin Franklin by the House of Commons (1766)

Considerations on the Propriety of Imposing Taxes in the British Colonies by Daniel Dulany (1765)

Virginia Resolves on the Stamp Act

Resolutions of the Stamp Act Congress

William Pitt’s Speech on the Stamp Act

An Act Repealing the Stamp Act

“Joy to America!” Colonists Respond to the Repeal of the Stamp Act, 1766 (Primary Sources)

Quartering Act of 1765 The Quartering Act of 1765 required colonists to provide housing and provisions to British soldiers. The act only extended to uninhabited buildings, but nevertheless provoked protest from colonists concerned that a standing army in their midst could quickly be turned against them. The act expired in 1767 but was revived in 1774.

Text of the Quartering Act of 1765

Colonists Respond to the Quartering Act (Primary Sources)

Sons of Liberty Starting in 1765, small groups emerged throughout the colonies to oppose parliament’s latest measures. Many of these groups combined in a formal network called the Sons of Liberty. Among its members were Samuel Adams, John Hancock, James Otis, and Paul Revere. Under the slogan, “no taxation without representation,” local chapters of the Sons of Liberty coordinated efforts with their counterparts in other colonies through committees of correspondence. The organization was effective in shaping public opinion and galvanizing action, often through mob violence.

Historical Background on the Formation of the Sons of Liberty (with Links to Primary Sources)

Association of the Sons of Liberty of New York (1773)

Alphabetical List of the Sons of Liberty Who Din’d at Liberty Tree

Sons of Liberty Bowl

Declaratory Act Passed in order not to concede too much with the repeal of the Stamp Act, the Declaratory Act of March 18, 1766, announced that Britain’s North American colonies were subordinate to the king and parliament, and that parliament possessed “full power and authority to make laws and statutes . . . to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.” The act was highly provocative, cutting to the heart of the colonists’ constitutional claims against Great Britain.

Text of the Declaratory Act

Townshend Acts The Townshend Acts, named for British Chancellor of the Exchequer Charles Townshend, were a series of acts meant to consolidate royal authority in the colonies. The most controversial of these measures was the Revenue Act, which imposed duties on colonial imports. Because their obvious purpose was to raise revenue, the colonial response was swift and impassioned. Articles appeared on both sides of the Atlantic condemning the acts, and colonials organized boycotts of British trade.

Text of the Revenue Act of 1767

Colonists Respond to the Townshend Acts, 1767–1770 (Primary Sources)

Non-consumption and Non-importation: Colonial Boycotts in Response to the Townshend Acts (Primary Sources)

The Boston Massacre On March 5, 1770, an angry crowd rioted in front of the Customs House in Boston, taunting the British soldiers standing guard and throwing small objects at them. The soldiers opened fire upon the crowd, killing five people. Although it occurred five years before the outbreak of hostilities, the event still resonates in popular memory as one of the first shots fired in the American Revolution.

Historical Background on the Boston Massacre (with Links to Primary Sources)

An Anonymous Account of the Boston Massacre (1770)

Captain Preston’s Account of the Boston Massacre (1770)

The Violent Confrontations of Early 1770 (Primary Sources)

The Gaspée Affair In March 1772, Britain dispatched the Gaspée to patrol the waters off Rhode Island for smugglers. When the Gaspée ran aground in June of that year, a group of colonials captured her captain and crew and set the vessel on fire.

The Burning of the Gaspée

An Oration upon the Beauties of Liberty by the Rev. John Allen (1772)

The Tea Act Parliament passed the Tea Act in 1773 in an effort to save the British East India Company from bankruptcy. The act gave the company a virtual monopoly of the sale of tea in the colonies. The tea would be sold at a deep discount, but nevertheless carried a duty levied by parliament. Radicals recognized that acceptance of the cheap tea came at the high price of acquiescence to taxation without representation. They found support among otherwise moderate merchants who could not compete with prices set by the British East India Company. The Tea Act helped consolidate opposition to parliament’s policies and set the stage for the Boston Tea Party.

Text of the Tea Act

Historical Background on the Tea Act

List of Participants in the Boston Tea Party

Colonists Respond to the Tea Act and the Boston Tea Party, 1773–1774 (Primary Sources)

The Intolerable Acts The Intolerable Acts (also known as the Coercive Acts) were a series of statutes whose principal aim was to punish the city of Boston for the Boston Tea Party. Taken together, the acts closed the Port of Boston, placed the government of Massachusetts under the direct control of parliament, allowed the Crown to remove trials to other colonies or to Great Britain, and allowed the quartering of troops in vacant buildings. The Quebec Act, which related to British governance in Quebec, stirred controversy in the colonies because it conferred religious privileges upon Catholics and violated the territorial claims of some colonies with respect to Canada. Mob violence erupted in Massachusetts in response to the acts.

Text of the Boston Port Act

Text of the Administration of Justice Act

Text of the Massachusetts Government Act

Text of the Quebec Act

Text of the Quartering Act

Colonists Respond to the Coercive Acts (Primary Sources)

Mob Attacks on Loyalists in Massachusetts, Aug. 1774–Feb. 1775 (Primary Sources)

First Continental Congress (1774) As relations with Britain reached a point of crisis, delegates from all the colonies except Georgia met in Philadelphia to discuss a united response to the Intolerable Acts. The Congress agreed to a number of coordinated measures against Britain, including boycotts of exports and imports. Perhaps more significant than any of the measures adopted, though, was the emergence of a sense of national unity among the colonies. John Adams, who was present at the Continental Congress, remarked, “The more We conversed with the Gentlemen of the Country, and with the Members of Congress the more We were encouraged to hope for a general Union of the Continent.” When the Congress adjourned, the delegates agreed to meet again in May 1775 in the event that American grievances were not resolved.

Historical Background on the First Continental Congress (with Links to Primary Sources)

Excerpts from the Debates in the First Continental Congress

Excerpts from the Proceedings of the First Continental Congress

The Suffolk Resolves

Journals of the Continental Congress, 1774–1789

The Outbreak of War The prospect of reconciliation between Britain and the colonies grew all the more remote with the Battle of Lexington and Concord in April 1775. The Patriot press exhorted Americans to arms. A Massachusetts broadside urged, “AMERICA’s Sons, yourselves prepare/ For LIBERTY now calls for War./ Exert yourselves with Force and Might,/ Show how AMERICANS can fight, /And only to maintain their Right—Farewell England.”

Background on the Battle of Lexington and Concord (with Links to Primary Sources)

Announcement of the Battle of Lexington and Concord (Handbill, Virginia, 1775)

Colonists Respond to the Outbreak of War, 1774–1775 (Primary Sources)

Loyalists at the Outbreak of the Revolution, 1775–1776 (Primary Sources)

Anti-Loyalist Broadsides & Blank Allegiance Forms, 1775–1776 (Primary Sources)

Recruiting Backcountry Settlers to the Patriot Cause, 1775 (Primary Sources)

Second Continental Congress As hostilities escalated, the Second Continental Congress convened in an attempt to avoid full-scale war. On July 8, 1775, the Congress sent the “Olive Branch Petition” to George III, pledging the colonies’ loyalty to the king and asking, “that your royal authority and influence may be graciously interposed to procure us relief from our afflicting fears and jealousies occasioned [caused] by the system before-mentioned, and to settle peace through every part of our dominions[.]” The king rejected the petition on August 23, 1775.

Letters on the Prospects for Reconciliation and the Beginning of War, 1775–1776 (Primary Sources)

George Washington Accepts His Appointment as Commander of the Continental Army (June 16, 1775)

Text of the Olive Branch Petition (July 5, 1775)

Text of the Declaration Setting Forth the Causes and Necessity of Their Taking Up Arms (July 6, 1775)

Common Sense Thomas Paine’s pamphlet Common Sense did more to convert Americans to the cause of independence than perhaps any single event. Rather than distancing the king from the policies of parliament, Paine focused squarely on the person of George III and unleashed a rhetorical firestorm. He denounced George III as a “Royal Brute” and Britain as a mother country that devoured her young. The pamphlet was widely read and heatedly debated among colonials.

Historical Background on Thomas Paine’s Common Sense (with Links to Excerpts)

Text of Common Sense

Praise for Common Sense: Excerpts from American Newspapers

A Loyalist Rebuttal to Common Sense: Excerpts from The Deceiver Unmasked by the Rev. Charles Inglis (1776)

Declaring Independence With public opinion shifting toward independence, the Second Continental Congress entertained a formal resolution that “these United Colonies are, and of right ought to be, free and independent states.” On July 2, 1776, Congress voted to adopt the resolution. Thomas Jefferson was charged with the task of drafting the Declaration of Independence, which was signed on July 4. Absent from the version adopted by the Congress was a provision condemning George III for his role in promoting the slave trade and for encouraging slaves to revolt against their masters in the colonies.

Historical Background on the Declaration of Independence

A Multitude of Amendments, Alterations, and Additions: The Declaration of Independence

Text of the Declaration of Independence with Annotations

Image of the Declaration of Independence Parchment

The Deleted Slave-Trade Clause in Thomas Jefferson’s Draft of the Declaration of Independence (1776)

Excerpts of Letters by Delegates to the Second Continental Congress on the Declaration of Independence (July 1776)

Celebrating the Declaration of Independence: Selections from American Newspapers, July–October 1776

A Loyalist’s Rebuttal to the Declaration of Independence: Excerpts from Thomas Hutchinson’s Strictures upon the Declaration of the Congress at Philadelphia (1776)

Revolution The American Revolutionary War raged for more than eight years. George Washington led the Continental Army as Commander in Chief while Congress and the states strove to raise troops, provisions, and supplies. Tens of thousands of Americans died during the war.

Selections of the Revolutionary War Correspondence of George Washington

Interactive Timeline of the American Revolution

The Collection of the American Revolution Center

Military Broadsides of the American Revolution

Recruiting African Americans into the Continental Army (Primary Sources)

Excerpts from the Narrative of Boyrereau Brinch, an Enslaved African American in the Revolutionary Army, 1777–1783

Chapter 3

Early State Constitutions Most of the former colonies adopted state constitutions during the early days of the Revolution. Americans’ long experience with written charters of government made any other political arrangement almost unthinkable. (Rhode Island continued to be governed by its royal charter – with references to Britain deleted – until 1842, when the state adopted a constitution in the wake of the Dorr Rebellion.) Power was shared by state executive, legislative, and judicial departments, but the elected legislatures wielded most of the power in day-to-day governance. All state constitutions contained provisions establishing property qualifications for suffrage, so the vast majority of people were disfranchised. Yet all state constitutions also contained bills of rights that anticipated many of the liberties subsequently enshrined in the national Bill of Rights.

Rhode Island Royal Charter of 1663

New Hampshire Constitution (January 5, 1776)

Georgia Constitution (February 5, 1777)

South Carolina Constitution (March 26, 1776)

Virginia Constitution (June 29, 1776)

New Jersey Constitution (July 2, 1776)

Delaware Constitution (September 10, 1776)

Pennsylvania Constitution (September 28, 1776)

Maryland Constitution (November 11, 1776)

North Carolina Constitution (December 18, 1776)

New York Constitution (April 20, 1777)

South Carolina Constitution (March 19, 1778)

Massachusetts Constitution (1780)

Articles of Confederation The Articles of Confederation, approved by the Second Continental Congress in 1777 and ratified by the states in 1781, established the first de jure national government of the United States of America. The union was organized on the principle of the sovereign equality of all states and established a national government administered by the Congress of the Confederation. Article XIII anticipated the Supremacy Clause of the Constitution of 1787, declaring that “the Articles of this Confederation shall be inviolably observed by every state, and the union shall be perpetual.” It constituted for the first time a federal union that has endured down to the present.

Draft Articles of Confederation (July 12, 1776)

Elliot’s Debates on the Articles of Confederation (Thomas Jefferson’s notes on the ratification debates begin at p. 70)

Text of the Articles of Confederation

Photographic Images of the Articles of Confederation

Calls for Abolition, 1773–1783 (Primary Sources)

Original Design of the Great Seal of the United States (Image)

Treaty of Paris The greatest achievement of the Confederation government was the negotiation and conclusion of the Treaty of Paris, which ended the Revolutionary War in 1783. Under the treaty Britain ceded to the United States not only the land within the boundaries of the original colonies, but also all the territory between the Allegheny Mountains and the Mississippi River. This set the stage for a westward expansion that eventually led settlers to the shores of the Pacific. The treaty also provided for the compensation of Loyalists for property confiscated from them during the war, an issue that led to much public debate. Alexander Hamilton himself represented a number of former Loyalists in their claims under the Treaty of Paris against the newly independent government.

Historical Background on the Treaty of Paris

Text of the Treaty of Paris

Photographic Images of the Treaty of Paris

A Pamphlet War on the Postwar Treatment of Loyalists (Excerpts)

Alexander Hamilton’s Letters from Phocion

Territorial Ordinances The Confederation government passed two measures providing for the administration of the newly acquired national territories. The Land Ordinance of 1785 dealt with the division and disposition of the western territories. The Northwest Ordinance of 1787 dealt with political arrangements in the territories north and west of the Ohio River.

Land Ordinance of 1785

Northwest Ordinance

Shays’s Rebellion The fragile authority of the Confederation government was tested in 1786 when rebellion broke out in Massachusetts. When the Massachusetts government refused to pass debt amelioration measures, debtors rose up under the leadership of Daniel Shays, a former captain in the Continental Army. From Paris, Thomas Jefferson wrote of the rebellion, “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.” It was the sort of thing he could write from an ocean away. In the young nation, the rebellion shook confidence in the national government and inspired calls for reform.

Biographical Sketch of Daniel Shays

Biographical Sketch of Job Shattuck

Engraving, “The Sons of Coke and Littleton” (1787)

Letter from Daniel Shays to General Shepard Regarding Funeral Rites for the Fallen (1787)

Proclamation Offering Amnesty to Rebels (June 15, 1787)

Letter by Thomas Jefferson to James Madison on Shays’s Rebellion (January 30, 1787)

Failures of the Confederation Government With its limited mandate for governance and its inability to raise sufficient revenue, the Confederation government found itself embarrassed in its foreign affairs and frustrated at home. In 1786, delegates of five states met at Annapolis to discuss reform. The Annapolis Convention called upon the states to send delegates to a gathering to be held in Philadelphia the following year for the purpose of proposing constitutional changes. As George Washington wrote to James Madison shortly after the Annapolis Convention adjourned, “Thirteen Sovereignties pulling against each other, and all tugging at the fœderal head, will soon bring ruin on the whole; whereas a liberal, and energetic Constitution, well guarded & closely watched, to prevent incroachments, might restore us to that degree of respectability & consequence, to which we had a fair claim, & the brightest prospect of attaining.”

Founders on the Defects of the Articles of Confederation, 1780–1787 (Excerpts)

Proceedings of the Annapolis Convention

Letter of George Washington to James Madison (November 5, 1786)

James Madison, Vices of the Political System of the United States (April 1787)

The Philadelphia Convention On February 21, 1787, Congress approved a convention of delegates “appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.” All present at the Convention agreed that change was needed. The question was only one of degree. Some favored shifting the center of political authority from the states to a strong national government, whereas others favored keeping the states the central units of political power. Two plans were circulated early on. The Virginia Plan, drafted by James Madison and presented by the Virginia delegation, proposed the creation of a strong national government. The New Jersey Plan, presented by William Paterson of New Jersey, proposed a federal government in which all states were equally represented and thereby protected the interests of the smaller states. Both plans took for granted that the only way forward was to abandon the Articles of Confederation, which clearly exceeded the authority granted by Congress in approving the Convention. The Connecticut Compromise, presented by Roger Sherman of Connecticut, struck a balance between the interests of large states and small states. It called for a bicameral legislature with proportional representation in one house of congress and equal representation in the other.

Report of Proceedings in Congress (February 21, 1787)

List of Delegates to the Constitutional Convention with Links to Biographies

On Creating the U.S. Constitution: Commentary of Delegates & Observers, May–November 1787 (Excerpts)

Farrand’s The Records of the Federal Convention of 1787

Links to Month-by-Month Accounts of the Progress of the Convention

Variant Drafts of the Virginia Plan

Photographic Images of the Virginia Plan

Variant Drafts of the New Jersey Plan

Background on the Connecticut Compromise

Presentation of the Connecticut Compromise to the Constitutional Convention

Slavery and the Constitution The status of slaves and slavery under the Constitution was the subject of substantial debate at the Philadelphia Convention. The delegates from the southern states favored counting slaves for purposes of representation in Congress, while antislavery delegates feared that this would give slave states a political incentive to continue and expand the institution of slavery. The hypocrisy of treating slaves as chattel property under state slave codes but as free citizens for the purpose of national representation was not lost on antislavery delegates. The controversy was resolved by the notorious Three-Fifths Compromise under which a slave counted as three-fifths of a free person for purposes of state representation. The Constitution also included a provision barring Congress from prohibiting the slave trade until 1808, thereby ensuring a steady supply of African slaves for the near future.

James Madison’s Notes on the Debates on Slavery at the Constitutional Convention:

The Final Draft When the final draft of the Constitution was presented to the Confederation Congress on September 20, 1786, many were shocked that the Convention had so far exceeded its mandate. The Congress was unable to do anything about it, however, because the document had been drafted by the most esteemed leaders of that generation, indeed, the most esteemed leaders of any generation. So the draft was sent to the several states for ratification by state constitutional conventions.

Essay: “A More Perfect Union: The Creation of the U.S. Constitution”

The Constitution of the United States

The Debate on Ratification Debate over ratification was heated, with Federalists pitted against Antifederalists. The Federalists, led by John Jay, Alexander Hamilton, and James Madison, argued that the proposed constitution would enable the fledgling nation to protect its interests both at home and abroad while ensuring a strong and vital union for the benefit of posterity. Antifederalists argued that the proposed government would swallow up the states and, with its glaring omission of a bill of rights, pave the way for abuses of power. Much of the debate took place in the popular press.

Text of the Federalist Papers (Organized Individually)

Chronology of the Pro- and Antifederalist Papers (with Links to the Full Text of Each)

Antifederalists’ Letters to Newspapers During the Constitution Ratification Debates, 1787–1788 (Excerpts)

Ratification of the Constitution On December 7, 1787, Delaware became the first state to ratify the Constitution. As more states ratified, the Constitution gained momentum; but Virginia, Massachusetts, and New York became battlegrounds for ratification. The fate of the proposed union depended on the support of these large and influential states. All three eventually ratified: Virginia by a margin of five votes and New York by a margin of three. After initially rejecting the new Constitution, Rhode Island was the last state to ratify in 1790.

Appeals for Calm in the Ratification Debates, 1787–1788 (Excerpts)

Ratification of the Constitution by the State of Delaware, December 7, 1787

Ratification of the Constitution by the State of Pennsylvania, December 12, 1787

Ratification of the Constitution by the State of New Jersey, December 18, 1787

Ratification of the Constitution by the State of Georgia, January 2, 1788

Ratification of the Constitution by the State of Connecticut, January 8, 1788

Ratification of the Constitution by the State of Massachusetts, February 6, 1788

Ratification of the Constitution by the State of Maryland, April 28, 1788

Ratification of the Constitution by the State of South Carolina, May 23, 1788

Ratification of the Constitution by the State of New Hampshire, June 21, 1788

Ratification of the Constitution by the State of Virginia, June 26, 1788

Ratification of the Constitution by the State of New York, July 26, 1788

Ratification of the Constitution by the State of North Carolina, November 21, 1789

Ratification of the Constitution by the State of Rhode Island, May 29, 1790

Chapter 4

The Election of 1789 George Washington was sworn in as the first president of the United States on April 30, 1789. As the most highly esteemed public figure of his generation, Washington conferred upon the new government a dignity and gravitas that it probably would not have enjoyed had any other person occupied the office. Mindful that the Constitution represented a bold and historic political experiment, Washington said in his inaugural address, “the preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.”

The Electoral Count for the Presidential Election of 1789

Washington's Inaugural Address of 1789

Article, “George Washington: The Reluctant President,” by Ron Chernow

The Material Culture of the Presidency

“A New Display of the United States of America” (Image)

Letter from George Washington to Alexander Hamilton (August 26, 1792) on the Rise of Political Faction

The First Federal Congress The first Congress met in New York City in 1789, keenly aware that the fate of the new government depended on how Congress managed its affairs. As Representative James Jackson of Georgia explained, “Our constitution . . . is like a vessel just launched, and lying at the wharf she is untried, you can hardly discover any one of her properties; it is not known how she will answer her helm, or lay her course; whether she will bear in safety the precious freight to be deposited in her hold.”

Birth of the Nation: The First Federal Congress (Online Exhibit)

The Bill of Rights One of the first items of business for the new Congress was drafting a Bill of Rights for ratification by the states. On June 8, 1789, James Madison introduced a draft bill of rights “to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution, which is considered as essential to the existence of the government by those who promoted its adoption.”

The First Federal Congress: Amendments to the Constitution (Online Exhibit)

James Madison Presents the Bill of Rights to Congress

Photographic Image of the Bill of Rights

Transcript of the Bill of Rights

Article, “James Madison and the Bill of Rights,” by Jack Rakove

The Judiciary Act of 1789 Principally drafted by Senators Oliver Ellsworth and William Paterson, the Judiciary Act of 1789 fully fleshed out the system of federal courts loosely drawn by Article III of the Constitution. The Judiciary Act created a federal judicial system that acknowledged the authority and jurisdiction of state courts while establishing the supremacy of the federal system in national affairs.

Background on the Judiciary Act of 1789

Text of the Judiciary Act of 1789

The Whiskey Rebellion In 1791, Congress levied an excise tax on whiskey. The tax provoked much resentment, which reached a head in 1794 with the outbreak of armed resistance in Pennsylvania. It was the first major domestic crisis of the Washington administration, and the president dealt with it swiftly. On August 7, President Washington issued a proclamation announcing his intention, “to take measures for calling forth the Militia.” He further stated, “I have accordingly determined to do so, feeling the deepest regret for the occasion, but withal, the most solemn conviction, that the essential interests of the Union demand it.” The rebellion was crushed and the rebels pardoned.

Excise Tax on Whiskey (1791)

Sixth Annual Message of George Washington (November 19, 1794)

Washington’s Supreme Court Appointments As the first president to nominate justices to the Supreme Court, George Washington set precedents that would endure through the centuries. Washington nominated justices who shared his political vision for the United States. He also sought to achieve balanced geographic representation on the Court in order to ensure that different regional interests were represented.

Essays, “The Supreme Court Before John Marshall,”by Robert Lowry Clinton

John Jay

John Rutledge

William Cushing

James Wilson

John Blair

James Iredell

William Paterson

Samuel Chase

Hayburn’s Case (1792) Hayburn’s Case called upon the Court to decide whether Congress could assign nonjudicial functions to federal judges. Congress changed the law before the Court could rule on the merits of the case.

Hayburn’s Case (1792)

Ware v. Hylton (1796) In Ware v. Hylton, the Supreme Court struck down a Virginia debt sequestration law on the ground that it violated the terms of the Treaty of Paris.

Ware v. Hylton (1796)

Chisholm v. Georgia (1793) In Chisholm v. Georgia, the Supreme Court held that citizens of South Carolina could sue the State of Georgia in federal court under Article III of the Constitution.

Chisholm v. Georgia (1793)

Hylton v. United States (1796) In Hylton v. United States, the Supreme Court ruled on the constitutionality of an act of Congress for the first time. Because the Court held the statute in question constitutional, the ruling was relatively uncontroversial.

Hylton v. United States (1796)

Vanhorne’s Lessee v. Dorrance (1795) In Vanhorne’s Lessee v. Dorrance, the federal circuit court for Pennsylvania struck down a state law on the ground that it violated the Contract Clause of the Constitution.

Vanhorne’s Lessee v. Dorrance (1795)

United States v. Hudson and Goodwin (1812) In United States v. Hudson and Goodwin, the Supreme Court held that there is no federal common law.

United States v. Hudson and Goodwin (1812)

Alexander Hamilton as Secretary of the Treasury Alexander Hamilton, the nation’s first secretary of treasury, was the architect of the early republic’s economic policy. He believed that a well-financed national debt was essential to establish the nation’s credit, and that manufacture and commerce were the principal engines of economic growth. He proposed the creation of the Bank of the United States and was responsible for the establishment of the national mint.

Report on the Subject of Manufactures (Excerpts)

Hamilton's Opinion as to the Constitutionality of the Bank of the United States (1791)

The First Bank of the United States: A Chapter in the History of Central Banking

Neutrality Proclamation

The French Revolutionary Wars of the 1790s triggered much controversy in the United States. Some, including Thomas Jefferson, viewed the French Revolution as the embodiment of the republican ideals that had animated the American Revolution. They urged the United States to honor earlier diplomatic commitments to France by assisting in her war against Britain. Others, including Alexander Hamilton, were wary of the radicalism of the French Revolution and urged the United States not to provoke Great Britain, the greatest naval power in the world. The controversy culminated in the Pacificus–Helvidius debates and Washington’s Neutrality Proclamation of 1793.

Text of the Proclamation of Neutrality (1793)

The Pacificus–Hevidius Debates of 1793–1794

Letter from Thomas Jefferson to James Madison (July 7, 1793)

Article, “Pacificus & Helvidius Reconsidered,” by William R. Castro

Citizen Genêt Notwithstanding Washington’s Proclamation of Neutrality, French ambassador to the United States Edmond-Charles Genêt attempted to galvanize domestic support for the revolutionary cause. He commissioned privateers to attack British commerce and exhorted Americans to assist in the defense of the French West Indies. In a notice of 1793, he urged, “I cannot too much encourage the citizens of the United States to continue to assist with unremitting exertions their republican brethren of the French West Indies, whose existence, from the liberal principles adopted by the national Convention with regard to the Colonies of the French Républic must essentially contribute to the prosperity of the United States.”

Extract from the Registers of the Deliberations of the Provisory Executive Council of France: Official Instructions to Edmond-Charles Genêt

Edmond-Charles Genêt’s Notice to the Citizens of the United States (June 17, 1793)

Cabinet Opinion on the Recall of Edmond Genêt (August 23, 1793)

Jay’s Treaty Relations between Britain and the United States remained tense after the Revolution. Britain flooded U.S. markets with cheap manufactures while excluding American goods; Britain continued to occupy territory in the Northwest that it had ceded to the United States under the Treaty of Paris; and Britain continued impressing American seamen into the Royal Navy. Jay’s Treaty secured the evacuation of the Northwest and granted Britain most-favored-nation status in commerce with the United States. Because of his weak bargaining position, Jay could achieve little more. In a letter to General Henry Lee on July 11, 1795, Jay wrote, “The treaty is as it is; and the time will certainly come when it will very universally receive exactly that degree of commendation or censure which, to candid and enlightened minds, it shall appear to deserve. In the meantime I must do as many others have done before me—that is, regretting the depravity of some, and the ignorance of a much greater number, bear with composure and fortitude the effects of each. It is as vain to lament that our country is not entirely free from these evils, as it would be to lament that our fields produce weeds as well as corn.” The treaty was deeply unpopular at home and brought the nation to brink of war with France.

Text of Jay’s Treaty

Letter from John Jay to General Henry Lee (July 11, 1795)

Letter from George Washington to John Jay (August 31, 1795)

Letter from John Jay to Edmund Randolph (August 20, 1795)

Letter from John Jay to George Washington (September 3, 1795)

Essay, “The Jay Treaty,” by James Baird, with Links to Select Digital Images of John Jay’s Papers

Essay, “Jay Treaty,” by Richard J. Behn

The X, Y, Z Affair As diplomatic relations with France worsened, President Adams sent a delegation of commissioners to Paris in the hope of negotiating a treaty to prevent the outbreak of war. The French government refused to receive the delegation, instead sending three agents to conduct negotiations. The agents, known as X, Y, and Z, demanded a loan for the French government and a bribe for members of the Directory, the current ruling body of France. The American commissioners flatly refused. When details of the French demands became known, the Hamiltonian faction of the Federalist party called for war, a course of action opposed by President Adams and averted by the Convention of 1800.

Coded Letter from James Monroe to George Washington (March 24, 1796) Notifying the President that the French Have Intercepted His Correspondence

Quasi War with France (Primary Sources)

The X, Y, Z Affair and the Quasi-War with France, 1798–1800

XYZ Affair Speech by John Adams (May 16, 1797)

Letter from George Washington to William Vans Murray in the Wake of the X, Y, Z Affair (August 10, 1798)

Treaty of Morfontaine

Alien and Sedition Acts As the undeclared naval war with France escalated, Congress passed several internal security measures. The Alien Act authorized the deportation of individuals deemed by the president to be a threat to national security. The Sedition Act, which was directed at the Republican press, criminalized the publication of any “false, scandalous and malicious writing” that brought the government, members of Congress, or the president into disrepute. The acts served to deepen the rift between the Republican and Federalist camps in government.

Text of the Alien and Sedition Acts

Photographic Images of the Alien and Sedition Acts

Background, “The Sedition Act Trials,” by Bruce A. Ragsdale

Article, “George Washington and the Alien and Sedition Acts,” by Marshall Smelser

Kentucky and Virginia Resolutions The Virginia and Kentucky legislatures passed resolutions condemning the Alien and Sedition Acts. The Resolutions, known as the Principles of ‘98, were drafted by James Madison and Thomas Jefferson for the Virginia and Kentucky legislatures, respectively. The Resolutions characterized the federal government as a compact government having only powers granted to it by the Constitution. Therefore, argued Kentucky’s Resolution No. 1, “this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” The theory of government advanced in the Resolutions gained prominence during the Nullification Crisis of 1828–1833.

Virginia Resolution

Kentucky Resolution

Essay, “The Principles of ’98: An Essay in Historical Retrieval,” by H. Jefferson Powell

Election of 1800 The hotly contested election of 1800 resulted in a clear Republican victory, but by an unclear deadlock: Thomas Jefferson and Aaron Burr tied in the race for the presidency. The vote was sent to the House of Representatives, where Alexander Hamilton ultimately intervened, encouraging Federalists to support Jefferson as the lesser of two evils. Aaron Burr became vice president. The episode led to the ratification of the Twelfth Amendment, which provides for the election of the president and vice president on separate ballots.

Tally of Electoral Votes for the 1800 Presidential Election, February 11, 1801

Article, “Thomas Jefferson, Aaron Burr and the Election of 1800,” by Thomas Ferling

Essay, “The Presidential Election of 1800: A Story of Crisis, Controversy, and Change,”by Joanne B. Freeman

Letter from Thomas Jefferson to Elbridge Gerry (January 26, 1799)

Letter from Alexander Hamilton to Harrison Gray Otis (December 23, 1800)

Twelfth Amendment (with Commentary)

Election of 1800: A Resource Guide

Judiciary Act of 1801 The Judiciary Act of 1801 reorganized the federal judiciary, reducing the number of Supreme Court justices to five and eliminating circuit duties for members of the Court. The Act created sixteen circuit judges, all appointed by President Adams during his final months in office. The act made the federal judiciary more efficient but was bitterly controversial because it was obviously motivated by party politics.

Text of the Judiciary Act of 1801

Background on the Judiciary Act of 1801

Chapter 5

The Hamilton–Jefferson Rivalry The political and ideological rivalry between Alexander Hamilton and Thomas Jefferson significantly influenced the course of American history. Each had a different vision for the future of the young Republic. Hamilton envisioned the nation as an industrial and commercial power with a vigorous national government, whereas Jefferson imagined a nation of self-sufficient farmers in which state government was the center of political power. Both contributed to a debate that has continued in some form or another down to the present. In a letter to James Madison of September 21, 1795, Jefferson characterized Hamilton as “a colossus to the anti-republican party. Without numbers, he is a host within himself.”

Letter from Thomas Jefferson to John Jay (August 23, 1785)

Thomas Jefferson’s Notes on the State of Virginia (1785)

Alexander Hamilton’s Report on Manufactures (1791)

Alexander Hamilton on the Adoption of the Constitution (June 24, 1788)

Letter from Thomas Jefferson to James Madison (September 6, 1789)

Letter from Thomas Jefferson to James Madison (September 21, 1795)

First Inaugural Address of Thomas Jefferson (March 4, 1801)

Book, Liberty and Order: The First American Party Struggle, by Lance Banning, ed.(Collection of Primary Sources)

Judiciary Act of 1802 After their victory in the 1800 election, Republicans set their sights on reclaiming the judiciary from Federalist control. The new Republican Congress repealed the Judiciary Act of 1801 and passed a new act in its place. The statute restructured the circuit courts, eliminating circuit judges and once again assigned Supreme Court justices to circuit court duties.

Background of the Judiciary Act of 1802

Text of the Judiciary Act of 1802

Stuart v. Laird (1803) In Stuart v. Laird the Supreme Court upheld the practice of assigning Supreme Court justices to the circuit courts.

Stuart v. Laird (1803)

Impeachment of John Pickering The removal of Federal District Judge John Pickering marked the first use of impeachment as a political device with respect to the judiciary. Mentally unstable and prone to angry outbursts, Pickering made an easy target for Jeffersonian Republicans bent on reminding Federalist judges that control of the political branches of government had changed. The charges against him fell short of the high crimes or misdemeanors required by Article II of the Constitution, but the Senate convicted him by a vote along party lines of 19–9.

Biography of Judge John Pickering

Record of the Impeachment and Trial of John Pickering (Precedents of the House of Representatives)

CRS Annotated Constitution: Article II

Impeachment of Samuel Chase Jefferson next sought the impeachment and removal of Supreme Court Justice Samuel Chase, an outspoken Federalist who had presided over several Sedition Act prosecutions of Republicans. After Chase delivered a partisan harangue to a Baltimore grand jury, Jefferson wrote to Representative Joseph Nicholson of Maryland, “Ought this seditious and official attack on the principles of our Constitution and on the proceedings of a State go unpunished, and to whom so pointedly as yourself will the public look for the necessary measures? I ask these questions for your consideration, for myself it is better that I should not interfere.” Nicholson took the hint and assisted in beginning impeachment proceedings against Chase. Like Judge Pickering, Chase was not accused of any high crimes or misdemeanors under Article II of the Constitution. Prosecutors instead urged the Senate to adopt a more flexible standard for conviction, including noncriminal impropriety. The defense replied that this would open the way for politically motivated prosecutions, making it impossible for the judiciary to remain independent of politics. Chase’s acquittal in the end delivered a severe blow to Jefferson’s goal of making the judiciary subordinate to the political branches of government.

Biography of Samuel Chase

Letter from Thomas Jefferson to Joseph Nicholson (May 13, 1803)

Senate Tries Supreme Court Justice

Luther Martin, Impeachment Trial of Justice Samuel Chase, Senate (February 23, 1804)

CRS Annotated Constitution: Article II

Jefferson’s Supreme Court Appointments Jefferson appointed three justices to the Supreme Court. Although loyal Republicans when appointed, they soon fell under the influence of Chief Justice Marshall. In a letter to James Madison of May 25, 1810, Jefferson complained, “the state has suffered long enough . . . from the want of any counterpoint to the rancorous hatred which Marshall bears to the government of his country, & from the cunning & sophistry within which he is able to enshroud himself. It will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall.”

William Johnson

Brockholst Livingston

Thomas Todd

Letter from Thomas Jefferson to James Madison (May 25, 1810)

The First Barbary War The Barbary states of Tunis, Algiers, Tripoli, and Morocco posed a persistent threat to the commerce of the early Republic. The pirates of the Barbary coast harassed American commerce in the Mediterranean, capturing vessels and holding sailors for ransom until the government paid for their release. Americans were insulated from this threat by Britain during the colonial period, but upon independence the United States was left to fend for itself. One-fifth of the annual budget of the United States was allocated to the payment of tribute under treaties with the Barbary States. As Edward Church, the U.S. consul at Lisbon wrote, “the faith of Pirates—whose only support is plunder, and who have hitherto contemned all those ties and obligations which clash with their interest, and which sometimes bind more civilized Despots, seems to me to be but a feeble dependence on which to place a large Stake.” Church’s words proved prophetic. In 1801, the pasha of Tripoli demanded more money, whereupon Jefferson, without consulting Congress, which was not in session at the time, sent a naval squadron instead. His action raised for the first time the issue of the president’s power to commit the United States to armed conflict on his own authority.

The Barbary Treaties, 1786–1836

Letter from Edward Church to Thomas Jefferson (September 22, 1793)

State Department Circular to U.S. Consuls (May 21, 1801);view=1up;seq=516

Essay, “The First Barbary War,” by Elizabeth Huff

Essay, “America and the Barbary Pirates: An International Battle Against an Unconventional Foe,” by Gerard W. Gawalt

The Louisiana Purchase In 1803 the Jefferson administration concluded a treaty with France for the purchase of the Louisiana Territory, doubling the size of the United States. Jefferson explained the significance of the purchase in a letter to John Dickinson of Delaware: “The acquisition of New Orleans would of itself have been a great thing, as it would have ensured to our western brethren the means of exporting their produce: but that of Louisiana is inappreciable, because, giving us the sole dominion of the Missisipi, it excludes those bickerings with foreign powers, which we know of a certainty would have put as at war with France immediately: and it secures to us the course of a peaceable nation.” Shortly after the purchase, President Jefferson commissioned an exploratory expedition of the territory by Captain Meriwether Lewis and Second Lieutenant William Clark.

Essay, “Louisiana Purchase,1803”

Transcript and Photographic Images of the Louisiana Purchase Treaty

Louisiana Purchase and Associated Documents

Letter from Thomas Jefferson to John Dickinson (August 9, 1803)

Speech of Senator Samuel White Against the Louisiana Purchase (November 2, 1803)

Lewis & Clark: The National Bicentennial Exhibition

The Burr Conspiracy Aaron Burr remains one of the most enigmatic figures of the founding generation. His political career was in many ways the mirror image of Alexander Hamilton’s, an irony further underscored by the fact that Burr killed Hamilton in a fateful duel in 1804. Ostracized by both political parties, Burr headed west to seek his fortune. He solicited funds from the Spanish and British governments and raised an armed force for some sort of military venture. His intentions, however, remain uncertain to this day. Whatever Burr’s plans, he was betrayed by a member of the conspiracy who informed President Jefferson that Burr was conspiring against the U.S. government. Burr was thereupon arrested and charged with treason in a case that set precedents both for the law of treason and the executive privilege of the president. Chief Justice Marshall presided at the trial, and his instruction to the jury on treason law resulted in Burr’s acquittal.

Biographical Information on Aaron Burr

Thomas Jefferson, Special Message on the Burr Conspiracy (January 22, 1807)

The Aaron Burr Trial (Collection of Primary Sources)

Letter from Thomas Jefferson to George Hay (June 17, 1807)

Article, “The Aaron Burr Treason Trial,” by Charles F. Hobson

Video, Burr, Hamilton, and Jefferson: A Study in Character, by Roger G. Kennedy

Jefferson’s Views of the Federal Judiciary Thomas Jefferson viewed the federal judiciary as a bastion of arbitrary power in the American constitutional system. Because they were independent of the political branches, he argued, federal judges were not responsible to any higher authority. As a result, he noted in a letter to Judge Spencer Roane of Virginia, “[t]he constitution . . . is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes.”

Letter from Thomas Jefferson to Abigail Adams (June 13, 1804)

Letter from Thomas Jefferson to Judge Spencer Roane (September 6, 1819)

Letter from Thomas Jefferson to James Pleasants (December 26, 1821)

Foreign Relations Diplomatic relations with Spain, France, and Great Britain worsened during the Jefferson administration. Jefferson’s plan to acquire West Florida from Spain backfired when Congress became aware that bribery was involved. And violations of neutrality by American merchants strained relations with both Britain and France. Britain responded by prohibiting American ships from trading with French ports, and France, in turn, prohibited American ships from complying with British restrictions. Tensions with Britain almost led to war when a British warship, the Leopard, opened fire on an American vessel, the Chesapeake, in order to search for alleged deserters from the Royal Navy. Jefferson committed a major blunder in backing the Embargo Act of 1808, which prohibited Americans from trading with European ports. The measure had such a disastrous effect on the U.S. economy that Jefferson was compelled to agree to its repeal in 1809.

Foreign Affairs under Thomas Jefferson

Letter from Thomas Jefferson to William Dunbar (September 21, 1803)

Letter No. 1 from William Dunbar to Thomas Jefferson (October 21, 1803)

Letter No. 2 from William Dunbar to Thomas Jefferson (October 21, 1803)

The Chesapeake Affair of 1807

Thomas Jefferson’s Address to Congress (October 27, 1807)

Embargo Act of 1808

James Madison Just as contemporaries regarded George Washington the “Father of his Country” for his role in creating the United States, many also regarded James Madison as the “Father of the Constitution” for his role in its drafting and ratification. But unlike Washington, Madison was not an exceptional president. A brilliant political theorist and an effective member of Congress, Madison lacked the political and administrative skills to govern effectively. His administration was marked by bitter disagreement within his cabinet, and his leadership was ultimately eclipsed by powerful Republicans in Congress.

Essay, “An Introduction to the Life and Papers of James Madison,” by J.C.A. Stagg

American President: James Madison (1751–1836)

Letter from James Madison to William Cogswell (March 10, 1834)

The War of 1812 As Britain continued seizing American ships and impressing Americans into the Royal Navy, a powerful faction in Congress known as the “war hawks” called for a declaration of war. In the summer of 1812, with a presidential election lying ahead, Madison obliged. The decision won him re-election but almost destroyed the unity of the nation. By 1814, American forces had been routed in Canada, the nation’s capital occupied and public offices burned, and threats of secession made in the New England states that had opposed the war from the beginning. Federalists opposed to the war met at Hartford, Connecticut, to discuss changing the Constitution to ensure that the South and West no longer dominated national politics. But Andrew Jackson’s victory at the Battle of New Orleans changed everything. The war had ended, a glorious victory had been won, and the Federalists who had participated in the Hartford Convention were now denounced for defeatism and disloyalty. It was a blow from which the Federalist party never recovered.

James Madison’s War Message to Congress (June 1, 1812)

British–American Diplomacy: War of 1812 and Associated Documents

Letter from James Madison to Samuel Spring (September 6, 1812)

Interactive Online Exhibit: The War of 1812

Online Exhibit: The Battle of New Orleans

Joseph Story One of Madison’s most important decisions as president was the appointment of Joseph Story to the Supreme Court. Story was a brilliant and influential legal scholar. Although a Republican when appointed to the Court, he became Chief Justice Marshall’s staunchest supporter and collaborator. His mastery of technical detail contributed significantly to the durability of Marshall’s constitutional rulings.

Biography of Joseph Story

The Joseph Story Digital Suite (Primary Sources)

A Familiar Exposition of the Constitution of the United States

James Monroe and the Era of Good Feeling With the demise of the Federalist party, interparty strife disappeared as the nation experienced for a time what amounted to one-party government. When James Monroe took office in 1817, the nation embarked on what became known as the Era of Good Feeling. The president captured the optimism of the day in his first inaugural address, proclaiming,Never did a government commence under auspices so favorable, nor ever was success so complete. If we look to the history of other nations, ancient or modern, we find no example of a growth so rapid, so gigantic, of a people so prosperous and happy.”

Biographical Essays on James Monroe

First Inaugural Address of James Monroe (March 4, 1817)

Chapter 6

John Marshall John Marshall was more than a judge; he was a judicial statesman. During his thirty-four years as Chief Justice of the United States, he transformed the Supreme Court from a peripheral judicial institution into a central pillar of government. Thanks to Marshall, Federalist principles of government survived long after the Federalist party died. His decisions consolidated and defined the authority of the national government and established the institution of judicial review as a check on the powers of the executive and legislative branches.

Biography of John Marshall (1755–1835)

Article, “Defining the Office: John Marshall as Chief Justice,” by Charles F. Hobson

The Marshall Court (1801–1835)

Marbury v. Madison and Judicial Review Before he was appointed to the Supreme Court, Marshall served as secretary of state in the Adams administration. In addition to his duties with respect to foreign relations, he was responsible for having the commissions delivered to Adams’s midnight appointees. Twenty-five of the commissions went undelivered, giving rise to one of the most celebrated cases in U.S. constitutional history, Marbury v. Madison. William Marbury, whose commission had gone undelivered, sued for a writ of mandamus under Section 13 of the Judiciary Act of 1789. Section 13 authorized the Supreme Court to issue the writ in cases of original jurisdiction, but Marshall realized that Jefferson would ignore the writ and thereby undermine the authority of the Court. However, if the Court declined to issue the writ, it would be perceived as weak. Marshall handled the dilemma with characteristic political acumen. He held that the president had unlawfully withheld Marbury’s commission, but that the Court lacked the jurisdiction under Article III of the Constitution to issue the writ of mandamus. He ruled that Section 13 was unconstitutional because Congress could not, under Article III of the Constitution, expand the original jurisdiction of the Supreme Court. In so doing, Marshall overturned an act of Congress for the first time, strengthened the role of the Court in government, and established an enduring precedent for judicial review.

Marbury v. Madison

Text of the Judiciary Act of 1789

Eakin v. Raub

Article, “Marbury v. Madison and the Doctrine of Judicial Review, by Edward S. Corwin”

Article, “Marbury, Section 13, and the Original Jurisdiction of the Supreme Court,” by Akhil Reed Amar

Essay, “The Trial of a Young Nation,” by Charles F. Hobson

State Sovereignty and the Marshall Court Section 25 of the Judiciary Act of 1789 conferred appellate jurisdiction upon the Supreme Court over claims under the Constitution, federal law, or treaty that had been rejected in a state court. The section was controversial because it subjected state court decisions to federal judicial review, thereby limiting the independence of state judiciaries. In two cases that turned on the status of land confiscated during the American Revolution, Fairfax Devisee v. Hunter’s Lessee (1813) and Martin v. Hunter’s Lessee (1816), the Supreme Court held that Section 25 was constitutional, thereby expanding the Court’s appellate jurisdiction.

Fairfax Devisee v. Hunter’s Lessee (1813)

Martin v. Hunter’s Lessee (1816)

Text of the Judiciary Act of 1789

Sovereign Immunity and the Marshall Court Section 25 of the Judiciary Act of 1789 came before the Court again in Cohens v. Virginia (1821), this time in an appeal against a state court criminal conviction in Virginia. Virginia argued that the appeal was barred by the Eleventh Amendment, which prohibited suits against sovereign states in the federal courts. The Court ruled that because Virginia had itself commenced the criminal proceedings in its state courts, the sovereign immunity granted by the amendment did not bar the appeal. The amendment barred only suits brought by private parties against states, not appeals against proceedings begun by states. Jefferson remarked in a letter to William Johnson that the states did not contemplate such an interpretation at the time the Constitution was framed: “The States supposed that by their tenth amendment, they had secured themselves against constructive powers. They were not lessoned yet by Cohen's case, nor aware of the slipperiness of the eels of the law.” The Court further ruled in Osborn v. Bank of United States (1824) that state officials acting under the color of an unconstitutional law cannot claim immunity for their actions under the Eleventh Amendment.

Eleventh Amendment (Annotated)

Cohens v. Virginia (1821)

Letter from Thomas Jefferson to William Johnson (June 12, 1823)

Osborn v. Bank of the United States (1824)

McCulloch v. Maryland (1819) Congress’s decision to renew the charter of the national bank sparked a backlash from southern and western states opposed to it as a threat to agrarian interests. Maryland attempted to exclude the bank by imposing a prohibitive tax on the issuance of bank notes. The cashier of the bank, James McCulloch, refused to pay, prompting Maryland to obtain a judgment against the bank in the state courts. The case was appealed to the United States Supreme Court, which found that the act chartering the bank was a valid exercise of Congress’s Article I power to pass “necessary and proper” laws. By holding that the Constitution conferred upon the federal government implied as well as express powers, Marshall effectively wrote Hamilton’s theory of loose construction of the Constitution into the supreme law of the land, setting the stage for a virtually limitless expansion of federal power and the realization of Hamilton’s vision of a unitary national state. Marshall went on to invalidate the tax as an unconstitutional levy upon an agency of the federal government.

McCulloch v. Maryland (1819)

Necessary and Proper Clause (Annotated)

Article, “The Original Meaning of the Necessary and Proper Clause,” by Randy Barnett

Craig v. Missouri (1830) In Craig v. Missouri, the Chief Justice led a divided Court in ruling that loan certificates issued by the State of Missouri violated the Monetary Clause of Article I of the Constitution. Although the certificates were not legal tender, Marshall broadly interpreted the Article I prohibition that “No State shall . . . coin Money; emit Bills of Credit [and]; make any Thing but gold and silver Coin a Tender in Payment of Debts.”

Monetary Clause (Annotated)

Craig v. Missouri (1830)

The Commerce Clause and the Marshall Court The Commerce Clause of the Constitution provides that Congress shall have the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Beyond that, the scope of the commerce power was originally unclear. In Gibbons v. Ogden (1824), Chief Justice Marshall interpreted the clause to encompass regulation by the national government of navigation and transportation, as well as the exchange of goods. He also held that all aspects of intrastate commerce relating to interstate and foreign commerce are within federal jurisdiction. The decision paved the way for sweeping claims of federal regulatory power. In Brown v. Maryland (1827), Marshall held that the Commerce Clause prohibited states from taxing imported goods before they enter the general stream of commerce. So long as imported goods remain in their original form or package, states cannot tax them. This case limited the tax power of the states while confirming the regulatory power of the federal government.

Commerce Clause (Annotated)

Gibbons v. Ogden (1824)

Brown v. Maryland (1827)

State Police Powers and the Marshall Court In Willson v. Black Bird Creek Marsh Company (1829), the Court had to determine whether a Delaware law allowing for the damming of a navigable creek violated the Commerce Clause of the Constitution. Marshall ruled that the state law was a constitutional exercise of the state’s police powers because Delaware had a legitimate interest in maintaining its internal waterways, and because the law did not conflict with an existing federal laws relating to the creek. Thus federal jurisdiction is paramount with respect to interstate commerce, but it is not necessarily exclusive.

Willson v. Black Bird Creek Marsh Company (1829)

The Contract Clause and the Marshall Court Fletcher v. Peck (1810) was the first case in which the Supreme Court construed the Contract Clause. The Court held that states, like private parties, are bound by the Contract Clause of the Constitution. The ruling was met with controversy, because states argued that it deprived them of a measure of their sovereignty by equating their contract powers with those of private parties. Marshall went even further in New Jersey v. Wilson (1812), ruling that the Contract Clause barred the state of New Jersey from rescinding a tax exemption on lands bought by whites from Native Americans who obtained the exemption under a treaty when the land was Indian territory. The tax exemption was held to create a contract right that ran with the land for the benefit of subsequent purchasers. In Green v. Biddle (1823), the Supreme Court expanded the Contract Clause to cover political agreements between states as well as contracts between private parties. Dartmouth College v. Woodward (1819) was the most important Contract Clause case decided by the Marshall Court. It had lasting consequences both for contract rights and economic development in the United States. The case involved the decision of the New Hampshire legislature to abrogate the royal charter establishing Dartmouth College and to turn the college into a public institution. Marshall ruled that public charters enjoyed the same protection as private contracts. Because corporations are established by public charter, the ruling assured investors that they would be protected against similar state interference. In Providence Bank v. Billings (1830), Marshall set limits on the Dartmouth ruling, holding that it did not exempt corporations from taxes unless the terms of their charters expressly exempted them from taxation.

Contract Clause (Annotated)

Fletcher v. Peck (1810)

New Jersey v. Wilson (1812)

Online Exhibit: Daniel Webster: Dartmouth’s Favorite Son

Dartmouth College v. Woodward (1819)

Green v. Biddle (1823)

Providence Bank v. Billings (1830)

Bankruptcy Laws and the Contract Clause In Sturges v. Crowninshield (1819), Chief Justice Marshall struck down a state bankruptcy law with respect to debts contracted before enactment of the law. In Ogden v. Saunders (1827), a divided Court (with Marshall dissenting) held that bankruptcy laws granting prospective relief to creditors do not violate the Contract Clause.

Sturges v. Crowninshield (1819)

Ogden v. Saunders (1827)

The Marshall Court and the Bill of Rights In Barron v. Baltimore (1833),the Court ruled that the Bill of Rights is not binding upon the states, but applies only to the federal government. Citing the legislative history of the Bill of Rights, Marshall held, “Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention.” Some previous federal case law, including Houston v. Moore (1820) and Bonaparte v. Camden & Amboy R.R. (1830), suggested that the states might be bound by particular provisions of the Bill of Rights, but Marshall was well aware that such sweeping restrictions on the police powers of the states would almost certainly bring political reprisals, damaging the Court as an institution of government. The Court then operated on a much shorter political leash than it does today.

Barron v. Baltimore (1833)

Fifth Amendment (Annotated)

Houston v. Moore (1820)

Bonaparte v. Camden & Amboy R.R. (1830)

The Marshall Court and the Slave Trade In 1807, Congress enacted a statute prohibiting the international slave trade, giving hope to abolitionists that the United States would enforce the prohibition against both American and foreign nationals who engaged in the trade. The circuit court case of La Jeune Eugenie (1822) foreshadowed issues that would come before the Supreme Court in The Antelope (1825). In the latter case, Chief Justice Marshall ruled that even though the slave trade was prohibited by the domestic law of several nations, it was still permissible under the law of nations, which he described as a body of law “derived from long usage and general acquiescence.” Because the law of nations was binding upon all states, the United States could not unilaterally impose its own domestic prohibition of the trade on the nationals of foreign states whose domestic law permitted it.

An Act to Prohibit the Importation of Slaves into any Port or Place Within the Jurisdiction of the United States

La Jeune Eugenie (1822)

The Story of The Antelope

The Antelope (1825)

Chapter 7

The Second Bank of the United States Chartered by Congress in 1816, the second Bank of the United States almost immediately became a subject of sectional controversy. The South and West regarded the bank as inimical to agrarian interests, whereas the Northeast viewed it as useful in regulating the money supply and stabilizing interest rates. The Panic of 1819 intensified opposition to the bank, and the Supreme Court’s ruling the same year in McCulloch v. Maryland putting it beyond the regulatory power of the states convinced many that it was not compatible with republican principles of government. When a bill extending the bank’s charter passed Congress in 1832, it was vetoed by President Jackson on constitutional grounds. His explanatory message to Congress rejected the Court’s McCulloch decision upholding the constitutionality of the bank, declaring: “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” After winning re-election, Jackson proceeded to destroy the bank through executive action. He ordered the secretary of the treasury to remove federal deposits to state banks, crippling the national bank. The Senate responded by censuring the president on March 28, 1834, an action later expunged from the record in 1837 by Jackson supporters.

Essay, “A Brief History of Central Banking in the United States,” by Edward Flaherty

The Second Bank of the United States: A Chapter in the History of Central Banking

Article, “The Panic of 1819: America’s First Great Depression,” by Clyde A. Haulman

President Jackson's Veto Message Regarding the Bank of the United States (July 10, 1832)

Article, “King Andrew and the Bank,” by Daniel Feller

Expunged Senate Censure Motion Against President Andrew Jackson (January 16, 1837)

The Protective Tariff During the early nineteenth century, Congress passed a number of tariffs to protect northern manufactures from foreign competition. The tariffs reduced foreign demand for American cotton, thereby earning opposition in the South. At the same time, the growth of northern industrial cities created demand for western food and raw materials, earning support for the protective tariff in the West. The 1828 “Tariff of Abominations” bought protection for northern manufactures and western agricultural interests at the expense of southern cotton planters. South Carolina Senator John Calhoun’s Exposition and Protest attacked the tariff as unconstitutional. It benefited the West and North at the expense of the South in violation of Congress’s duty to pass laws for the benefit of the entire nation. Drawing on the Virginia and Kentucky Resolutions, Calhoun argued that states had the power to nullify federal laws that they believed were unconstitutional. Nowhere in the South was opposition to the protective tariff stronger than in South Carolina, where in 1832 the state legislature summoned a convention to pass on the constitutionality of such measures. The convention, chaired by Senator Robert Hayne, adopted an ordinance of nullification declaring the tariff unconstitutional and prohibiting collection of duties in the state. The state threatened secession if the federal government intervened. Jackson responded forcefully to the challenge to federal authority. His Proclamation to the People of South Carolina on December 10, 1832 declared: “Disunion, by armed force, is TREASON . . . Are you really ready to incur its guilt? If you are, on the head of the instigators of the act be the dreadful consequences—on their heads be the dishonor, but on yours may fall the punishment—on your unhappy State will inevitably fall all the evils of the conflict you force upon the government of your country.” Congress supported his stance with the Force Act of March 2, 1833, which authorized the president to use federal troops to enforce the tariff. Armed conflict was averted by passage of the Compromise Tariff of 1833, which gradually reduced tariff schedules and expanded the list of free goods.

John C. Calhoun, Speech on the Tariff Bill (April 4, 1816)

Henry Clay, Speech on the American System (February 2, 3, and 6, 1832)

An Act in Alteration of the Several Acts Imposing Duties on Imports (Tariff of Abominations; May 19, 1828)

John C. Calhoun’s Exposition and Protest (December 19, 1828)

An Act to Alter and Amend the Several Acts Imposing Duties on Imports (July 14, 1832)

President Jackson's Proclamation Regarding Nullification (December 10, 1832)

Daniel Webster’s Second Reply to Senator Hayne (January 26–27, 1830)

An Act Further to Provide for the Collection of Duties on Imports (The Force Act; March 2, 1833)

Compromise Tariff of 1833 (March 2, 1833)

Sectionalism and Slavery While compromises struck at the Philadelphia Convention deferred the impending sectional conflict over slavery for a few decades, the issue nevertheless intruded into national politics on several fronts. In 1808 it became unlawful to import slaves into the United States, and the northern states had enacted measures phasing out slavery within their borders. But in the South slavery remained a viable and profitable institution. Article IV of the Constitution extended its reach across state boundaries by requiring the free states to return runaways to their owners. The status of slavery in the national territories ignited controversy when Missouri, originally a part of the Louisiana Territory, applied for admission to the Union as a slave state in 1818. Representative James Tallmadge of New York proposed conditioning Missouri’s admission to the Union on its agreement to abolish slavery gradually. The southern states rejected the proposal, leading to a deadlock that took Congress two years to resolve. The compromise finally struck provided that Missouri would be admitted as a slave state; Maine would separate from Massachusetts and become a free state in order to maintain the balance between free and slave states in Congress; and slavery would be prohibited in the rest of the Louisiana Territory north of the latitude 36°30’. The Compromise tacitly recognized the power of Congress to prohibit slavery in the national territories. In a letter to John Holmes, Thomas Jefferson wrote of the Missouri Compromise, “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.”

Pre-Civil War African-American Slavery

Pennsylvania Act for the Gradual Abolition of Slavery (1780)

New Jersey Act for the Gradual Abolition of Slavery (1804)

Race and Antebellum New York City

Online Exhibition: Back of the Big House: The Cultural Landscape of the Plantation, by John Michael Vlach

Online Exhibition: “Abolition, Anti-Slavery Movements, and the Rise of the Sectional Controversy

Interactive Map of Slavery in the United States c. 1791–1861 (scroll down page for link)

Speech of Rep. James Tallmadge on Slavery in Missouri (February 15, 1819);view=1up;seq=5

Collection of Digitized Primary Sources on the Missouri Compromise:

Letter from Thomas Jefferson to John Holmes (April 22, 1820)

Election of 1824 The election of 1824 marked the end of the Era of Good Feelings and the reemergence of two-party politics in the United States. As several Republican leaders vied for the presidency, the party split into two factions: the National Republicans, led by John Quincy Adams, and the Democratic Republicans, led by Andrew Jackson. The former supported a strong national government, high tariffs, and the national bank. The latter supported states’ rights and opposed the national bank and, in the South at least, the protective tariff.

The Presidential Election of 1824: A Resource Guide

The Campaign and Election of 1824

Map of Election Returns

Essay, “Adams v. Jackson: The Election of 1824,” by Edward G. Lengel

Georgia and Indian Removal By the nineteenth century, standing treaties between the federal government and the Creek and Cherokee Indians recognized the tribes as independent nations and confirmed their title to vast lands. But as the populations of Georgia, Ohio, and Tennessee grew, so, too, did pressure from the states to extinguish Indian land titles. When the federal government refused to do so, Georgia acted unilaterally in arranging a corrupt agreement with a handful of Creek chiefs to buy 25 million acres of land for a nominal sum. The Creeks repudiated the agreement, and President Adams sent in federal troops to protect them from the state. The Cherokees fared less well when Andrew Jackson became president. In 1828, in flagrant violation of their treaty rights, Georgia annexed all Cherokee lands within the state. When Cherokee leaders appealed to Washington for protection, Jackson refused to intervene on their behalf. He also refused to enforce the holding of the Supreme Court in Worcester v. Georgia (1832) that the federal government had exclusive jurisdiction over Cherokee lands and that the laws of Georgia did not apply there. His refusal to enforce their treaty rights set the stage for the mass removal of the Cherokees to the far west in a tragic episode known as the Trail of Tears. One-fourth of the Cherokee nation perished during the trek.

Treaty with the Creeks (1790)

Treaty with the Cherokee (1791)

Treaty with the Cherokee (1794)

Cherokee Nation v. Georgia (1831)

Cherokee Nation Denied Foreign Nation Status

Worcester v. Georgia (1832)

Andrew Jackson’s Annual Address to Congress (December 7, 1835)

Letter from Chief John Ross (July 2, 1836)

Article, “The Cherokees vs. Andrew Jackson,” by Brian Hicks

Primary Sources on the Trail of Tears

Letter to President Van Buren, “Protest Against the Removal of the Cherokee Indians from the State of Georgia,” by Ralph Waldo Emerson (1838)

Private John G. Burnett on Cherokee Indian Removal (1838–1839)

The Legacy of Indian Removal

Election of 1828 The election of 1828 was characterized by a new and rowdy populism. Andrew Jackson began campaigning against John Quincy Adams in 1825, a full three years before the election took place. Jackson’s bold, colorful character made him a highly compelling candidate, and he was aided by news coverage that glorified his military victories and frontier exploits. The entire South and West voted for Jackson, along with two northern states. Once in office, Jackson made the most of the power at his disposal. He was a firm believer in what Senator William Marcy called the spoils system, the practice of dispensing power and patronage in exchange for political loyalty. During his two terms in office, Jackson fired approximately 20 percent of all federal officeholders for political reasons.

Presidential Election of 1828: A Resource Guide (Links to Primary Sources)

Andrew Jackson: Campaigns and Elections

Senator William Marcy’s Speech on the Spoils System, 1831 (at p. 1325),+they+expect+to+retire+from+office.&source=bl&ots=C3WmPUpI96&sig=eIqvihYvhxKGuM0fJLy-J5U2QHE&hl=en&sa=X&ei=bSVpUpfQGpSlkQehu4GoAg&ved=0CCwQ6AEwAA#v=onepage&q&f=false

The Whig Party The Whigs were a broad-based political coalition opposed to Andrew Jackson’s policies and highhanded methods. They included states’ rights advocates who opposed the president’s hard line against South Carolina, northeastern business interests supporting the national bank, southern planters who felt increasingly marginalized in national affairs, and westerners frustrated by Jackson’s opposition to federal transportation improvements. The party’s name derived from the constitutional struggle of the English Whigs against royal absolutism during the reign of James II.

Essay, “The Rise and Fall of the American Whig Party: Jacksonian Politics and the Onset of the Civil War,” by Michael Holt;rgn=main

Whig Party Platform of 1848

Martin Van Buren Martin Van Buren earned the nickname “the little magician” in his native New York for both his stature and his political mastery. He successfully opposed the Whigs and won the presidency in the election of 1837, but his administration was fraught with crisis from the start. A financial panic prompted a run on banks, resulting in financial collapse and economic depression. Through the Independent Treasury Act of 1840, Van Buren divorced the treasury from financial intermediaries and established a subtreasury system that would manage the nation’s finances.

Presidential Election of 1836: A Resource Guide

Essays on Martin Van Buren and His Administration

1837: The Hard Times

Election of 1840 The economic depression triggered by the Panic of 1837 helped propel the Whig candidate, William Henry Harrison, into the presidency in 1840. Previous elections had been characterized by elements of populism, but the election of 1840 was altogether cynical in the Whig emphasis on obfuscation and political hoopla. Harrison was a newcomer to national politics, so he had no political history that opponents could hold against him. Van Buren, on the other hand, was characterized as an out-of-touch elitist indifferent to the nation’s economic woes. Dazzled by the spectacle of the Whigs’ political rallies and cheered by the hard cider that flowed freely at them, voters bought the Whig message and voted overwhelmingly for Harrison.

Online Exhibit: 1840: Hard Cider and Log Cabins

Presidential Election of 1840: A Resource Guide

Supreme Court Appointments by Andrew Jackson and Martin Van Buren Jackson and Van Buren treated their Supreme Court appointments as an extension of the spoils system, appointing party loyalists without regard to their judicial qualifications. John McLean was a seasoned politician who used his position on the Court to advance his presidential ambitions. Henry Baldwin was a volatile personality, but loyal. James Wayne was a firm supporter of the president through the Nullification Crisis, and Philip Barbour was a zealous supporter of states’ rights and opponent of the national bank. When the Judiciary Act of 1837 expanded the number of justices on the Supreme Court to nine, John Catron and Peter Daniel were appointed. Jackson’s most significant appointment went to Roger B. Taney. With John Marshall’s death in 1836, the president chose his longtime advisor and loyal Democrat to succeed the great Federalist. An able lawyer and ardent defender of states’ rights, he would carry Jackson’s legacy forward long after the President left office.

John McLean

Henry Baldwin

James M. Wayne

Philip Barbour

Roger B. Taney

Text of the Judiciary Act of 1837

John Catron

Peter V. Daniel

Chapter 8

Retreat from Judicial Nationalism When Andrew Jackson appointed Roger B. Taney to succeed John Marshall as Chief Justice of the United States, he selected a brilliant jurist, astute politician, and a loyal Jacksonian. The majority of the court shared Taney’s political views, so he was able to shape judicial policy and shift power back to state governments in many key areas, particularly with respect to federalism and state police powers. In Briscoe v. Bank of Kentucky (1837), the Court held that banknotes issued by a corporation chartered and owned by the State of Kentucky did not violate the Article I monetary prohibition against the issuance of bills of credit by the states. The decision gave the states greater financial flexibility without overturning Marshall’s 1830 decision in Craig v. Missouri invalidating notes issued by the states directly. In Bank of Augusta v. Earle (1839), the Taney court held that corporations do not have a constitutional right to do business in other states under the Article IV Privileges and Immunities Clause. Although they may do business across state lines as a matter of interstate comity, the states have the sovereign power to exclude out-of-state corporations from doing business within their borders.

Briscoe v. Bank of Kentucky (1837)

Craig v. Missouri (1830)

Bank of Augusta v. Earle (1839)

The States and the Contract Clause One of Taney’s most significant achievements was limiting the Contract Clause jurisprudence of the Marshall Court with respect to the states. In Charles River Bridge v. Warren Bridge (1837), he held that implied obligations of contract could not be read into contracts between states and private parties. The Court thereby established a double standard for the contracts of states and the contracts of private parties. No rights not expressly granted in a charter or contract could be claimed against a state because states represented the general public interest. The rule was succinctly stated in Ohio Life Insurance and Trust Company v. Debolt (1854): “The grant of privileges and exemptions to a corporation are strictly construed against the corporation, and in favor of the public. Nothing passes but what is granted in clear and explicit terms.” The Charles River Bridge case drew sharp criticism from conservatives. Chancellor James Kent of New York wrote that the ruling destabilized the entire body of contract law: “If the legislature can quibble away, or whittle away its contracts with impunity, the people will be sure to follow.” Daniel Webster believed, “the decision of the Court will have completely overturned, in my judgment, one great provision of the Constitution.” Notwithstanding the public interest exception, the Taney Court vigorously defended contract rights under ordinary circumstances. In Dodge v. Woolsey (1856), the Court held that contract rights expressly granted by the states were binding regardless of their effect on the public interest. Likewise, in Bronson v. Kinzie (1843) the Court held that states could not pass statutes impairing the rights of creditors.

Charles River Bridge v. Warren Bridge (1837)

Letter by Daniel Webster to Joseph Story (1837; at p. 269)

Letter by James Kent to Joseph Story (June 23, 1837; at p. 270)

Ohio Life Insurance and Trust Company v. Debolt (1854)

Dodge v. Woolsey (1856)

Bronson v. Kinzie (1843)

Federal Commerce Power and the States Like the Marshall Court, the Taney Court found it difficult to determine where the states’ police powers ended and the federal commerce power began. In New York City v. Miln (1837), Justice Barbour ruled that the basic functions of state government to advance the general welfare were “complete, unqualified and exclusive” within the federal system. The Court elaborated on this view in the License Cases (1847), finding that states have concurrent jurisdiction with the federal government to regulate commerce so long as the state measures do not conflict with federal statutes. But a sharply divided court held in the Passenger Cases (1849) that “[a] concurrent power in two distinct sovereignties, to regulate the same thing, is as inconsistent in principle as it is impracticable in action.” The Court attempted to reconcile these contradictions in the case law by adopting the selective-exclusiveness doctrine, a theory of federal–state relations in areas of competing jurisdiction. In Pennsylvania v. Wheeling Bridge Company (1851) and Cooley v. Board of Wardens of the Port of Philadelphia (1852), the Court held that federal jurisdiction is exclusive in matters of national concern but concurrent, though paramount, in areas of local concern. Thus in the Wheeling Bridge case, the court held that Congress’s exclusive jurisdiction over river navigation barred Virginia from building a bridge across the Ohio River. But in Cooley v. Board of Wardens of the Port of Philadelphia (1852), the Court held that a pilotage regulation imposed by the state of Pennsylvania was constitutional because Congress had not preempted pilotage as an area of federal regulation.

New York City v. Miln (1837)

License Cases (1847)

Passenger Cases (1849)

Pennsylvania v. Wheeling & Belmont Bridge Company (1851)

Cooley v. Board of Wardens of the Port of Philadelphia(1852)

Political Questions and the Court As late as the 1840s, Rhode Island continued to be governed by many of the terms of its old colonial charter, under which only freeholders enjoyed the franchise. Frustrated with the state of affairs, Thomas Dorr led a group of Democrats in calling a constitutional convention at Providence. The result was a “People’s” Constitution that enfranchised all white males. Rival governments were set up at Providence and Newport, and the Court was ultimately called upon to rule which was the legitimate government of the state. The Court effectively sidestepped the question in Ex parte Dorr (1844) and Luther v. Borden (1849). In Ex parte Dorr, the Court dismissed a petition for a writ of habeas corpus on the ground that it could not issue writs on petitions from prisoners sentenced in the state courts. In Luther v. Borden, it declined to rule on the legitimacy issue on the ground that the issue was political in nature and therefore not judiciable. Such questions were best settled by politicians rather than by judges. The ruling would be cited as a precedent for Congressional Reconstruction after the Civil War.

Dorr Rebellion Depositions

Ex parte Dorr (1844)

Luther v. Borden (1849)

Federal Diversity of Citizenship Jurisdiction In Strawbridge v. Curtiss (1806) and Bank of the United States v. Deveaux (1809), Chief Justice Marshall limited the diversity of citizenship jurisdiction of the federal courts over suits involving corporations. He held that the federal courts have diversity jurisdiction over corporations only when the shareholders of a corporation were not citizens of the same state as the adversary party. The Taney court rejected this approach in Louisville, Cincinnati and Charleston Railroad Company v. Letson (1844), ruling that diversity jurisdiction turned not on the citizenship of the shareholders, but on the state in which the corporation was domiciled. This approach treated corporations as legal persons and citizens of their domiciliary states. It provided corporations with a more favorable judicial forum than was then available in often hostile state courts.

Strawbridge v. Curtiss (1806)

Bank of the United States v. Deveaux (1809)

Louisville, Cincinnati and Charleston Railroad Company v. Letson (1844)

Maritime Jurisdiction In The Steamboat Thomas Jefferson (1825), Chief Justice Marshall adopted the English “tidewater” rule for admiralty jurisdiction, ruling that federal admiralty jurisdiction extended only to seas and coastal rivers but not to inland bodies of water. The rapid growth of inland maritime commerce in the United States placed tremendous pressure on this approach to admiralty jurisdiction, limiting the federal courts only to cases where there was diversity of citizenship between the parties. In Propeller Genesee Chief v. Fitzhugh (1851), Chief Justice Taney responded to this pressure, abandoning Marshall’s tidewater rule as better suited to the geography of England than the United States.

The Steamboat Thomas Jefferson (1825)

Propeller Genesee Chief v. Fitzhugh (1851)

Federal Common Law Section 39 of the Judiciary Act of 1789 requires federal courts exercising diversity jurisdiction to apply the laws of the states in which they sit. In Swift v. Tyson (1842), the Court abandoned the practice of following both the statutes and the decisional law of the states in diversity cases. Justice Story held that Section 39 requires the federal courts to follow only state statutes but not state decisional law. The federal courts were free to develop their own decisional law in diversity cases. Story hoped that this would create a body of federal common law that would serve as a model for the states and promote uniformity of law throughout the United States.

Swift v. Tyson (1842)

Appointments to the Supreme Court With Taney as Chef Justice, the court enjoyed a solid Democratic majority. Samuel Nelson, a moderate Democrat, was appointed by President Tyler and confirmed by a Whig Senate. President Polk nominated Levi Woodbury and Robert C. Grier, both loyal Democrats. Benjamin R. Curtis, a Whig, was appointed by Millard Fillmore at the recommendation of Daniel Webster. Franklin Pierce appointed John A. Campbell, a Democrat who would become the only justice to resign from the Court in order to support the Confederacy. Nathan Clifford, also a Democrat, was appointed by James Buchanan in 1857, making him the last justice appointed to the Court prior to the Civil War.

Samuel Nelson

Levi Woodbury

Robert C. Grier

Benjamin R. Curtis

John A. Campbell

Nathan Clifford

Chapter 9

The Antislavery Movement Moral and demographic pressures strained the compromises on slavery brokered in 1789. The rise of abolitionism in the North intensified the sectional divide in the nation, while the growth of the black population in the South made the prospect of emancipation all the more threatening to entrenched white interests. Organizations such as the American Anti-Slavery Society and individuals such as Frederick Douglass popularized the evils of slavery and pressed northern states for reform. In the South, leaders such as James Henry Hammond defended slavery as a just and natural institution without which civil society could not be preserved. “[A]ny species of emancipation with us would be followed instantly by civil war between the whites and blacks,” he remarked in 1836, “A bloody exterminating war, the result of which could not be doubtful, although it would be accompanied with horrors such as history has not recorded.”

A Chronology of Antislavery

Constitution of the Anti-Slavery Society (1833)

Narrative of the Life of Frederick Douglas, An American Slave: Written by Himself (1845)

James Henry Hammond, Speech in the House of Representatives (February 1, 1836)

Online Exhibition: Influence of Prominent Abolitionists

The “Gag Rule” Because the nation was so deeply divided on slavery, national leaders attempted to keep it out of federal politics. The “Gag Rule” adopted by the House of Representatives required that all petitions relating to slavery be tabled without discussion. Antislavery politicians argued that the slave interests had effectively nullified the First Amendment by barring discussion of the issue on the national level. However, the westward expansion of the United States made it all but impossible to keep slavery off the national agenda.

The “Gag Rule” Resolution (December 21, 1837)

Essay, “The Gag Rule, Congressional Politics, and the Growth of Anti-Slavery Popular Politics,” by Jeffery A. Jenkins and Charles Stewart III

Manifest Destiny and the Mexican War In an 1845 article on the annexation of Texas, John L. O’Sullivan wrote that it was the nation’s “manifest destiny to overspread the continent allotted by Providence for the free development of our yearly multiplying millions.” The idea became an article of faith in American politics as the nation expanded westward. But Mexican territory stood between the United States and the fulfillment of its manifest destiny to reach the Pacific. Most of this territory was vulnerable to seizure, as it was sparsely populated. Texas was the first state to be settled at the expense of Mexico. Annexing Texas, a slave territory, became a controversial issue because it would have broken the fragile balance between slave and free states. In 1845, Congress passed a joint resolution bringing Texas into the Union. This provoked a crisis with Mexico, which refused to recognize U.S. sovereignty over the state. President Polk sent a delegation to Mexico, ostensibly to resolve the dispute over Texas but actually to negotiate the purchase of New Mexico and California, which made up half the territory of the nation. When Mexico refused, Polk ordered U.S. forces to take up positions along the Rio Grande. The move provoked Mexico to cross the Rio Grande, triggering war.

“The Great Nation of Futurity,” United States Magazine and Democratic Review (November 1839)

“Annexation,” by John O'Sullivan, United States Magazine and Democratic Review (July–August 1845)

Interactive Website: U.S.–Mexican War, 1846–1848

Images of the U.S.–Mexican War

Documents of the U.S.–Mexican War

Civil Disobedience by Henry David Thoreau

The Wilmot Proviso The Mexican War further complicated the national debate on slavery. When President Polk asked Congress for an appropriation to pay for the war, David Wilmot, an antislavery Democrat from Pennsylvania, added a rider stipulating that “neither slavery nor involuntary servitude should ever exist in any part of the territory.” The proviso was repeatedly rejected by the Senate, but passed the House of Representatives every time, further exacerbating the divide between North and South. It also prompted a sea change in the national debate over slavery. Southern leaders such as Jefferson Davis and John C. Calhoun now argued that Congress had no authority to enact prohibitions in the national territories that discriminated against citizens of the slave states. Slaves were property like all other property, they argued, and the Constitution unambiguously protected property in the territories. Whereas the status of slavery in the territories had before been susceptible to negotiation and compromise, it now was a matter of constitutional rights.

Text of the Wilmot Proviso

John E. Carew, “The Wilmot Proviso-The Ruin and Injustice of Its Operation” (August 14, 1847; at p. 286)

Report and Resolutions of the Mississippi Convention of October 3, 1849 (at p. 69)

Compromise of 1850 As controversy threatened to disrupt the Union, Senator Henry Clay stepped forward to broker a compromise. By now an elder statesman, his incomparable political skills pulled the nation back from the brink. He presented a series of resolutions to the Senate on February 5–6, 1850: California would be admitted to the Union as a free state, and the rest of the territory taken from Mexico would be organized without any restrictions on slavery. The settlers themselves would decide the status of slavery under what would come to be called “popular sovereignty.” In addition, slavery would be prohibited in the District of Columbia, and a strong fugitive slave law would be passed compelling the northern states to return runaway slaves to their owners. The proposal was vigorously debated. John C. Calhoun opposed it on constitutional grounds, suggesting instead a constitutional amendment that would give the sections a veto in national legislation. An amendment would settle once and for all the persistent struggle over the status of slavery in the nation. Daniel Webster threw his support behind the compromise, ensuring with his stature that northern congressmen would follow suit. However, he also alienated abolitionists who believed that the compromise was a deal with the devil. Whig Senator William Seward expressed this view, charging that the compromise was “radically wrong and essentially vicious.”

Compromise of 1850

Compromise of 1850 (Primary Documents)

Speech of Henry Clay in the Senate (February 5 & 6, 1850)

Biographical Information on Henry Clay

Speech of John C. Calhoun in the Senate (March 4, 1850)

Speech by Daniel Webster (March 7, 1850)

Speech by William Seward in the Senate (March 11, 1850; at p. 51)

Online Exhibit: The Compromise of 1850

Fugitive Slave Law In Prigg v. Pennsylvania (1842), the Supreme Court held that the federal government had exclusive jurisdiction over the return of fugitive slaves across state lines. Justice Story ruled that the Fugitive Slave Law of 1793 was the only governing law on the matter. But because the federal government had exclusive jurisdiction to prescribe the rules governing the return of fugitive slaves, it also had exclusive jurisdiction to enforce that law. Thus states were in no way obligated to assist in the return of runaway slaves. The Fugitive Slave Law, part of the Compromise of 1850, established a process for the return of escaped slaves in which it was all but impossible for alleged runaways to prove their free status. In order to secure the return of alleged fugitives, owners had to present an affidavit of ownership to a federal judge or commissioner. The act further stipulated, “In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence; and the certificates . . . mentioned shall be conclusive of the right of the person or persons in whose favor granted to remove such fugitive to the State or Territory from which he escaped.” Those who rendered assistance to runaway slaves were subjected to civil and criminal penalties. The act only served to exacerbate the controversy over slavery. Abolitionists boldly defied the law by openly aiding runaways. They popularized its injustice to generate support for their cause. The poet Henry Wadsworth Longfellow wrote of the law, “What a disgrace this is to a republic of the nineteenth century.”

Text of the Fugitive Slave Law of 1793

Prigg v. Pennsylvania (1842)

Text of the Fugitive Slave Law of 1850

Online Exhibit: Fugitive Slave Law

Henry Longfellow and the Fugitive Slave Act

Kansas-Nebraska Act The Kansas-Nebraska Act removed the last barrier to the expansion of slavery in the territories. The product of a political bargain struck by Senator Stephen Douglas, the act repealed the Missouri Compromise of 1820 in exchange for southern support for a northern route for the transcontinental railroad. Under the Kansas-Nebraska Act, the land west of the Mississippi was divided into the territories of Kansas and Nebraska. There, the settlers would decide the legal status of slavery by popular sovereignty.

Text of the Kansas-Nebraska Act

Photograph of the Kansas-Nebraska Act

The Supreme Court and the Slave Trade Before the Supreme Court took up the issue of slavery as a domestic institution, it considered the status of the slave trade under international law. United States v. The Schooner Amistad involved a mutiny by African slaves aboard a Spanish slave ship originating in Cuba. The ship was intercepted off the coast of Long Island and taken to Connecticut. When the slaves were charged with murder and piracy, local abolitionists rallied around them, publicizing the case and providing legal counsel. Under a bilateral treaty, the United States was required to return to Spain any ships and merchandise seized on the high seas by pirates or robbers. But Justice Story ruled that the treaty was inapplicable here: the Amistad Africans were not merchandise because the slave trade was illegal under U.S. and Spanish law. “They are natives of Africa,” he wrote, “and were kidnapped there, and were unlawfully transported to Cuba, in violation of the laws and treaties of Spain, and the most solemn edicts and declarations of that government. By those laws, and treaties, and edicts, the African slave trade is utterly abolished; the dealing in that trade is deemed a heinous crime; and the negroes thereby introduced into the dominions of Spain, are declared to be free.”

United States v. The Schooner Amistad (1841)

Interactive Website: Famous American Trials, Amistad Trials, 1839–1840

Links to Photographic Images of Key Documents in the Amistad Case

Amistad: Seeking Freedom in Connecticut

Slavery and State Police Powers Groves v. Slaughter (1841) turned on the enforceability of loans for the purchase of slaves in Mississippi. A provision of the state constitution prohibited the interstate purchase of slaves by Mississippi residents. Debtors argued that the illegality of the transactions made the loans unenforceable. The majority upheld the loans on narrow grounds, but Justice McLean dissented, going further than the issue required. He called slavery an evil and held that the right of states to exclude slaves was “higher and deeper than the Constitution.”

Groves v. Slaughter (1841)

Mississippi Constitution of 1832

The Dred Scott Case At the heart of the case was the status of Dred Scott, a Missouri slave whose owner brought him to Illinois, a free territory. Scott claimed that his residence in Missouri gave him standing to bring suit in the federal courts and rendered him a free man. The precedent of Strader v. Graham (1851) supported Scott’s argument, and the Court could have narrowly disposed of the case had public pressure not moved the justices to rule on the broader issue of whether the Constitution allowed Congress to prohibit slavery in the territories. Taney wrote the majority opinion, which found that Scott was not a citizen of Missouri. Although he could have ended the matter there, the chief justice went further, finding that the Missouri Compromise was unconstitutional because the Fifth Amendment protected property in slaves. The decision removed any reason for political compromise on the part of South, setting the stage for the fratricidal conflict of the Civil War.

Strader v. Graham (1851)

Dred Scott v. Sandford (1857)

Dred Scott v. Sandford (Primary Sources)

Frederick Douglass on Dred Scott (May 14, 1857)

Ableman v. Booth (1859) In Ableman v. Booth, the Supreme Court held that a Wisconsin court could not order the release of a person imprisoned under the authority of the United States. That the prisoner in question happened to stand accused of assisting a runaway slave in violation of the Fugitive Slave Act only underscored the impression on the part of many northerners that slave interests dominated the Court, and that it was too deeply biased to render impartial justice.

Ableman v. Booth (1859)

Lincoln–Douglas Debates The Lincoln–Douglas Debates introduced Abraham Lincoln to a national audience. The series of seven debates over the course of 1858 were part of the candidates’ campaigns for one of Illinois’s two Senate seats. Although Douglas won the election, the debates put Lincoln on the national political map and helped to define him as a candidate for the presidency in 1860.

Lincoln-Douglas Debates of 1858

“Finding His Voice,” Items from With Malice Toward None: The Abraham Lincoln Bicentennial Exhibition

John Brown On October 16, 1859, a group of abolitionists led by John Brown raided the Virginia town of Harpers Ferry, seizing the federal arsenal there in the hopes of provoking a slave revolt. The culprits were captured and tried, and Brown was sentenced to death for treason. The event served to exacerbate political tensions. When Congress met in December that year, Senator James Hammond commented, “Every man in both Houses is armed with a revolver-some with two and with a bowie knife.”

Interactive Website: John Brown’s Harpers Ferry Raid

The Mauzy Letters

Election of 1860 Never has the outcome of an election been more consequential than it was in 1860. The contest between the Democratic candidate, Stephen Douglas, and the Republican candidate, Abraham Lincoln, would determine whether the nation went to war. Douglas had enough national support to hold the country together, but Lincoln’s support rested almost exclusively in the North and West. Lincoln’s victory signaled to many in the South that secession and war were the only way forward.

Presidential Election of 1860: A Resource Guide (Links to Primary Sources)

“THE REPUBLICAN NOMINATIONS.; Letters of Acceptance of Messrs. Lincoln and Hamlin” (New York Times, June 9, 1860)

Secession and Disunion South Carolina led the way to the rupture of the Union. In the wake of Lincoln’s election, the state summoned a convention that adopted an ordinance of secession on December 20, 1860. Senator John Crittenden made a last-ditch effort to spare the nation from war by proposing an unamendable constitutional amendment restoring the Missouri Compromise. Lincoln urged Republicans to reject the Crittenden Amendment, prompting the secession of six more states. By now, war was inevitable.

Declaration of the Immediate Causes which Induce and Justify the Secession of South Carolina from the Federal Union (December 20, 1860)

South Carolina Ordinance of Secession (December 20, 1860)

Amendments Proposed in Congress by Senator John J. Crittenden (December 18, 1860)

Declaration of Secession of Georgia (January 9, 1861)

A Declaration of the Immediate Causes which Induce and Justify the Secession of the State of Mississippi from the Federal Union (January 9, 1861)

Mississippi Ordinance of Secession (January 9, 1861)

Farewell Speech of Jefferson Davis to the United States Congress (January 21, 1861)

A Declaration of the Causes which Impel the State of Texas to Secede from the Federal Union (February 2, 1861)

Virginia Ordinance to Repeal the Ratification of the Constitution of the United States of America (April 17, 1861)

Chapter 10

Civil War Online Resources (General)

Timeline of the American Civil War

Online Exhibition: The Civil War in America

Online Exhibition: A More Perfect Union

House Divided: The Civil War Research Engine at Dickinson College

Civil War Documents and Audio Files

Digital Lincoln

The Papers of Abraham Lincoln (Digital Archive)

Mr. Lincoln’s Virtual Library

Interactive Website: The Valley of the Shadow: Two Communities in the American Civil War

The Outbreak of War In the months following the declarations of secession, the Confederacy began seizing federal arsenals and property throughout the South. Ready to take a stand against this provocation, Lincoln informed the governor of South Carolina that he planned to send supplies to the Union garrison at Fort Sumter. This prompted a direct confrontation and, ultimately, the outbreak of hostilities.

Letter from Confederate General P.G.T. Beauregard Notifying Union Major Robert Anderson that He Has an Hour to Surrender (April 12, 1861)

Article, “Fort Sumter: The Civil War Begins,” by Fergus M. Bordewich

Interactive Website: Fort Sumter

Lincoln’s War Aims At the start of the war, Lincoln’s sole aim was the preservation of the Union and the restoration of federal authority in the seceded states. Even though he found slavery morally repugnant, Lincoln made it clear that he did not see the war as an opportunity to abolish the institution everywhere. Radical Republicans in Congress saw things differently: to them, the war should not end until emancipation was achieved.

Abraham Lincoln, First Inaugural Address (March 4, 1861)

Abraham Lincoln, Second Inaugural Address (March 4, 1865)

Horace Greeley to Abraham Lincoln (August 1, 1862)

Abraham Lincoln to Horace Greeley (August 22, 1862);view=fulltext;q1=greeley

Gettysburg Address (November 19, 1863)

Article, “Lincoln’s Contested Legacy,” by Philip B. Kunhardt III

Article, “Liberty Is a Slow Fruit: Lincoln the Deliberate Emancipator,” by Louis P. Masur

African Americans During the Civil War The attack on Fort Sumter prompted free blacks to attempt to enlist in the Union army. However, a federal statute barred African Americans from bearing arms for the United States. Senator Charles Sumner urged the nation to allow African Americans to enlist: “[T]hey have a special interest in the suppression of the Rebellion. The enemies of the Union are the enemies of their race. Therefore, in defending the union, they defend themselves even more than other citizens; and in saving the Union, they save themselves.” President Lincoln agreed. In the Emancipation Proclamation, he called upon blacks to enlist. “The colored population is the great available and yet unavailed of, force for restoring the Union,” he wrote on March 26, 1863. Indeed, African Americans served valiantly in the war, comprising approximately 10% of the Union army.

Senator Charles Sumner: Let Colored Men Enlist: Letter to a Convention at Poughkeepsie, New York, July 13, 1863

African American Recruitment Poster

Letter from Abraham Lincoln to Andrew Johnson (March 26, 1863)

54th Massachusetts Regiment

The Fight for Equal Rights: Black Soldiers in the Civil War (with Links to Primary Sources)

Timeline: African Americans in the Civil War

African-American Soldiers During the Civil War (with Links to Primary Sources)

Selected Online Works by Civil War Era African American Women

Newspaper Account of a Meeting Between Black Religious Leaders and Union Military Authorities (February 13, 1865)

The Confederate Government The Constitution of the Confederate States of America was closely patterned after the Constitution of the United States. Its preamble made clear, however, that the states did not surrender any of their sovereign rights to the Confederate government. Instead of beginning with “We the People of the United States,” it began: “We the People of the Confederate States, each State acting in its sovereign and independent character.” In his inaugural address, Jefferson Davis characterized it as, “a Constitution differing only from that of our fathers in so far as it is explanatory of their well-known intent, freed from the sectional conflicts which have interfered with the pursuit of the general welfare.”

Constitution of the Confederate States of America

The Papers of Jefferson Davis (Digital Archive)

Inaugural Address of Jefferson Davis (February 18, 1861)

Jefferson Davis’s Message to the Congress of Confederate States (May 2, 1864)

Act to Increase the Military Force of the Confederate States (February 10, 1865)

Prize Cases (1863) Because he refused to recognize the legitimacy of secession, Lincoln viewed the war as an internal insurrection rather than an international conflict. As a result, the laws and customs of war were not a perfect fit for the conditions of the Civil War. So Lincoln’s decision to impose a blockade—customarily a war measure—on southern ports in April 1861 presented many legal questions. Congress approved the blockade proclamation in July 1861, raising the question of whether captures that occurred prior to that authorization were legal. The matter came before the Supreme Court in the Prize Cases (1863). A sharply divided Court held that the seizures were lawful because the president’s duty to suppress insurrections implied the power to take necessary military measures without consulting Congress.

Lincoln’s Blockade Proclamation

Prize Cases (1863)

Second Confiscation Act The Confiscation Act of 1862 authorized the federal government to seize property located in the North that belonged to Confederate supporters. The property would be subjected to in rem proceedings in the absence of the owners. During these proceedings, the owners would be adjudged loyal or disloyal and, if disloyal, their property would be confiscated. This amounted to the punishment of persons in absentia without criminal conviction. The act was challenged in Miller v. United States (1871) and upheld by a divided Court on the ground that the forfeiture was lawful under the international laws of war.

Miller v. United States (1871)

Military Conscription The Conscription Act of 1863 was the first military draft in American history. Opponents argued that it violated Article I of the Constitution, which authorizes Congress “to raise and support” armies but does not explicitly authorize conscription. The constitutional issue would not reach the Supreme Court until World War I.

Conscription Act of 1863

Diary of Cyrus Pringle

Lincoln and the War Powers In the wake of the attack on Fort Sumter, Lincoln used his war powers as president to fight the Confederacy. Congress was out of session, but this did not prevent him from proclaiming a blockade and summoning troops. Congress subsequently approved these measures retroactively. Lincoln used his war powers aggressively throughout the war. He suspended the writ of habeas corpus in an area extending from New York City to Washington, D.C. When Chief Justice Taney held the suspension unconstitutional in Ex parte Merryman (1861), Lincoln simply ignored the ruling. The following year, Lincoln issued a proclamation extending martial law to all persons arrested by the military for disloyal activities anywhere they occurred. The constitutionality of subjecting civilians to martial law came before the Court in Ex parte Vallandigham (1864) and Ex parte Milligan (1866). The Court dodged the issue in Vallandigham on the ground that because military commissions were not part of the regular judiciary the Supreme Court lacked appellate jurisdiction over the case. But in Milligan, with the war over, the Court revisited the issue, ruling that the president lacked constitutional authority to order the trial of civilians by military courts in areas where the regular courts were still open.

Ex parte Bollman (1807)

Martin v. Mott (1827)

Proclamation on Suspension of Habeas Corpus (September 25. 1862)

Proclamation 104—Suspending the Writ of Habeas Corpus Throughout the United States (September 15, 1863)

Article, “Lincoln’s Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis,” by James A. Dueholm

Ex parte Merryman (1861)

Essay, “Ex parte Merryman and Debates on Civil Liberties During the Civil War ” by Bruce A. Ragsdale

General Order No. 38

Ex parte Vallandigham (1864)

Speeches, Arguments, Addresses, and Letters of Clement L. Vallandigham (1864)

Article, “Lincoln, Vallandigham, and Anti-War Speech in the Civil War,” by Michael Kent Curtis

Ex parte Milligan (1866)

Virginia v. West Virginia (1871)

Congress and Slavery In 1862, Congress abolished slavery in the District of Columbia and freed all slaves in the national territories. The measures were probably unconstitutional, because slaveholders were denied their property rights in slaves without any judicial process. But by this point, moderates and radicals alike would settle for nothing less than the abolition of slavery. Lincoln also came to accept that emancipation was the only thing that would dispose of sectional tensions over slavery once and for all. In 1863, the president issued the Emancipation Proclamation on the ground that it was “a fit and necessary war measure” that he had authority to take as commander in chief. Uncertainty as to whether Lincoln actually had such constitutional authority prompted the adoption and ratification of the Thirteenth Amendment abolishing slavery throughout the United States.

President Lincoln’s Message to Congress on the Gradual Abolishment of Slavery (March 6, 1862)

District of Columbia Emancipation Act (1862)

Abolition in the District of Columbia

Interactive Timeline of the Emancipation Proclamation

Text of the Emancipation Proclamation

Mrs. Luther Fowler [George Washington] to Abraham Lincoln, Sunday, March 19, 1865 (Writes on Behalf of Freedman at Hilton Head)

Emancipation Proclamation (Links to Primary Sources)

Visualizing Emancipation

Essay, “The Emancipation Proclamation: An Act of Justice,” by John Hope Franklin

Thirteenth Amendment (Annotated)

Thirteenth Amendment to the U.S. Constitution (Links to Primary Sources)

The Fighting Ends On April 10, 1865, Confederate General Robert E. Lee wrote, “After four years of arduous service, marked by unsurpassed courage and fortitude, the Army of Northern Virginia has been compelled to yield to overwhelming numbers and resources. I need not tell the brave survivors of so many hard-fought battles, who have remained steadfast to the last, that I have consented to the result from no distrust of them. But, feeling that valor and devotion could accomplish nothing that could compensate for the loss that must have attended the continuance of the contest, I determined to avoid the useless sacrifice of those whose past services have endeared them to their countrymen.” Lee’s surrender marked the beginning of the end of military resistance in the South. Jefferson Davis was captured in May 1865, and on August 20, 1866, President Andrew Johnson signed a proclamation declaring that the war had ended.

Grant and Lee: The Surrender Correspondence

Surrender of Army Northern Virginia (April 10, 1865)

Letter from Varina Davis, Wife of Jefferson Davis, Describing the Capture of Her Husband (June 6, 1865)

Proclamation 157—Declaring that Peace, Order, Tranquillity, and Civil Authority Now Exists in and Throughout the Whole of the United States of America (August 20, 1866)

Presidential Reconstruction Plans for the reconstruction of the former Confederate states were underway long before the war ended. Lincoln believed that the president had primary responsibility for postwar Reconstruction as commander in chief. In his last public address, he said of Reconstruction, “It is fraught with great difficulty. Unlike the case of a war between independent nations, there is no authorized organ for us to treat with. No one man has authority to give up the rebellion for any other man. We simply must begin with, and mould from, disorganized and discordant elements. Nor is it a small additional embarrassment that we, the loyal people, differ among ourselves as to the mode, manner, and means of reconstruction.”

Proclamation of Amnesty and Reconstruction (December 8, 1863)

Special Field Order No. 15 (January 16, 1865)

Last Public Address of Abraham Lincoln (April 11, 1865)

Wade-Davis Bill Radical Republicans insisted that Congress, not the president, had authority over Reconstruction. Congressional Republicans contended that Article IV, Section 3 of the Constitution gave Congress the power to govern the national territories, which was the de facto status of the seceded states with the collapse the Confederacy. In 1864, Congress passed the Wade-Davis Bill asserting congressional control over Reconstruction. Lincoln killed the bill with a pocket veto, enraging members of Congress and exacerbating the rift between the president and the Radicals in Congress. The rift would widen into a chasm when Vice President Johnson succeeded Lincoln as president.

Wade-Davis Bill (1864)

Veto Message with Wade-Davis Proclamation and Bill (July 8, 1864)

Wade-Davis Manifesto (August 5, 1864)

Appointments to the Supreme Court Changes in personnel went a long way toward rehabilitating the reputation of the Supreme Court in the wake of the Dred Scott decision and its marginalization during the Civil War. When Justice Curtis resigned after the Scott decision, President Buchanan appointed Maine Democrat Nathan Clifford to the Court. Sweeping changes occurred under Lincoln. He appointed Noah H. Swayne, a Republican who had defended fugitive slaves, and Samuel F. Miller, a staunch abolitionist. He also appointed David Davis, a close friend and political ally, and Stephen J. Field, a staunch defender of the Union. Lincoln’s most important Court appointment went to Salmon P. Chase, a leading Radical who had long aspired to the presidency. A principled and ambitious leader, Chase’s antislavery credentials helped heal the wound that the Dred Scott decision had inflicted upon the Court.

Nathan Clifford

Noah Swayne

Samuel F. Miller

David Davis

Stephen J. Field

Salmon P. Chase

Article, “From Antislavery Lawyer to Chief Justice: The Remarkable but Forgotten Career of Salmon P. Chase,” by Randy E. Barnett

Chapter 11

General Web Resources on Reconstruction

America’s Reconstruction: People and Politics After the Civil War

A Visual Timeline of Reconstruction

Reconstruction & Civil Rights, America’s Unfinished Revolution: 1865–1877

Reconstruction: The Second Civil War

Freedman and Southern Society Project

Andrew Johnson and Reconstruction Andrew Johnson, a Tennessee Democrat and Unionist, assumed the presidency upon Lincoln’s assassination in April 1865. Whereas Congress preferred a gradual program involving fundamental reforms for the reconstruction of the South, Johnson favored a rapid process with little social reform. His Amnesty Proclamation of May 29, 1865, was the first step in that direction. All but the richest and most powerful members of the Confederacy would be granted general amnesty. States would be readmitted to the Union when their new governments repudiated the Confederate debt, abolished slavery, and ratified the Thirteenth Amendment. But as the process of Reconstruction unfolded, a deep divide emerged between the president and Congress over the extension of civil and political rights for African Americans.

Andrew Johnson

Amnesty Proclamation (May 29, 1865)

Freedmen’s Bureau Congress established the Freedmen’s Bureau during the war in order to distribute emergency relief to former slaves. In 1866, Radicals in Congress proposed renewing the Bureau and expanding its functions. The bill included a provision for the trial by military tribunals of all persons who deprived freedmen of their civil rights. Johnson vetoed the bill on the ground that it was unconstitutional. But in July 1866 Congress passed an almost identical act over his veto.

An Act to Establish a Bureau for the Relief of Freedmen and Refugees (March 3, 1865)

North Carolina Black Soldiers to the Freedmen’s Bureau Commissioner (May/June 1865)

Letter by Edwin H. McCaleb, Former Confederate Soldier, on Conditions in the Postwar South (1865)

Chairman of the Orangeburg, South Carolina, Commission on Contracts to the Freedmen's Bureau Commissioner, Enclosing a Speech to the Freedpeople; and the Commissioner's Reply (June 12, 1865)

Tennessee Freedmen to the Freedmen's Bureau Assistant Commissioner for Kentucky, Tennessee, and Northern Alabama (July 27, 1865)

Commander of U.S. Forces at Columbia, Louisiana, to the Headquarters of the Western District of Louisiana, Enclosing a Labor Contract Between a Freedwoman and Her Former Owner (September 20, 1865)

Second Freedmen’s Bureau Bill (December 4, 1865)

Mississippi Black Soldier to the Freedmen's Bureau Commissioner (December 16, 1865)

Freedmen's Bureau Agent at Brentsville, Virginia, to the Freedmen's Bureau Superintendent of the 10th District of Virginia (January 15, 1866)

Veto of the Second Freedmen’s Bureau Bill (February 19, 1866)

The Black Codes The Black Codes were measures passed by the Johnson-reconstructed state governments to keep blacks second-class citizens. The codes criminalized interracial marriage, limited black property rights, and established a legal double standard for whites and blacks. In some states, blacks could not quit their jobs without permission, effectively keeping them in de facto bondage despite emancipation. The patent racism of the codes radicalized northern public opinion and called into question the legitimacy of the state governments established under Johnson’s reconstruction plan.

Louisiana and Mississippi Black Codes (1865–1866)

Texas Black Code (1866)

South Carolina Black Code (1865)

North Carolina Black Code (1866)

Video, Black Codes and Pig Laws (PBS Documentary)

Civil Rights Acts of 1866 The Civil Rights Act of 1866 attempted to protect southern blacks from the Black Codes. It stipulated that “citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” The president vetoed the bill on the ground that the federal government did not have the power to enforce rights not guaranteed by the Constitution. Congress overrode the veto, thus marginalizing the president.

Civil Rights Act of 1866

President Johnson’s Veto Message, Civil Rights Act (1866)

Civil Rights Act of 1875

The Fourteenth Amendment Concerns that the Civil Rights Act might be invalidated by the courts prompted the Radicals to incorporate its key provisions into the Constitution through the Fourteenth Amendment. The Amendment overturned Dred Scott by providing that all persons born or naturalized in the United States are citizens thereof and of the states wherein they may reside. It also provided that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Radicals made ratification of the amendment a precondition of federal recognition of the reconstructed governments in the South. Johnson urged southerners to reject the amendment, expecting the Radicals to be repudiated in the coming congressional elections. But the opposite happened; the Radicals won a landslide victory, giving them control of Congress and a mandate to take control of Reconstruction.

Debate on the Proposed Fourteenth Amendment (May 29, 1866)

Fourteenth Amendment (Annotated)

The Fourteenth Amendment to the U.S. Constitution (with Links to Primary Sources)

Photograph of the Manuscript of the Fourteenth Amendment

Act to Enforce the Provisions of the Fourteenth Amendment (April 20, 1871)

Radical Reconstruction Congress passed the First Military Reconstruction Act over the president’s veto in 1867. It suspended civil governments in the former Confederate states and divided them into five military districts under army command. The general in command could impose martial law and subject individuals to military trial. In effect, the southern states would be treated as conquered provinces. Civil government would be restored when loyal voters, including blacks but excluding whites who had supported the Confederacy, elected state conventions to draft new state constitutions. The constitutions would be subject to congressional approval and ratification by the voters of the state. The state governments established under the new constitutions would have to ratify the Fourteenth Amendment and would be eligible for representation in Congress only when the amendment became effective.

First Reconstruction Act (1867)

Veto of the First Reconstruction Act (March 2, 1867)

First Supplement to the First Reconstruction Act of 1867 (March 23, 1867)

Second Supplement to the First Reconstruction Act of 1867 (July 19, 1867)

Judiciary Act of 1867 The Judiciary Act of 1867 authorized the federal courts to issue writs of habeas corpus and conferred appellate jurisdiction on the Supreme Court to review such cases on appeal.

Judiciary Act of 1867

Tenure of Office of Act In 1867, the Radicals in Congress attempted to limit Johnson’s role in Reconstruction by passing the Tenure of Office Act and the Command of the Army Act. The Tenure of Office Act prohibited the president from removing officials who had been appointed with the Senate’s consent until a replacement had been approved by the Senate. Under the Command of the Army Act, the president could only issue orders to military commanders through the commanding general of the army (who happened to be General Grant), thus depriving him of effective control over the military authorities responsible for implementing Reconstruction.

Tenure of Office Act (March 2, 1867)

The Impeachment of Andrew Johnson Johnson’s dismissal of Secretary of War Edwin Stanton without the consent of the Senate presented Radicals in Congress with an opportunity to remove him from office. The House of Representatives proceeded to impeach the president, citing, among other things, his violations of the Tenure of Office Act. Chief Justice Chase presided over the trial in the Senate. The trial resulted in Johnson’s narrow acquittal by a one-vote margin.

The Andrew Johnson Impeachment Trial (with Links to Primary Sources)

Articles of Impeachment

Senate Trial Record

Map Showing Senate Impeachment Vote

History of the Impeachment of Andrew Johnson by David B. Hill

The Supreme Court and the Constitutionality of Reconstruction Southern states made two attempts to challenge the constitutionality the Reconstruction Acts in the courts. In Mississippi v. Johnson (1867), the Supreme Court dismissed a suit brought by the state government of Mississippi to enjoin enforcement of the Acts by the president on the ground that the Court had no jurisdiction to limit the president’s political functions. In Georgia v. Stanton (1868), the Court dismissed a similar suit brought by the government of Georgia against Secretary of War Stanton on the ground that Stanton’s political functions in office were beyond the Court’s jurisdiction. The Radicals in Congress avoided a serious challenge to the constitutionality of military Reconstruction in Ex parte McCardle (1869) by the highhanded expedient of retroactively repealing the Court’s appellate jurisdiction over the case. They avoided a similar challenge in Ex parte Yerger (1870) under an agreement releasing the petitioner from the military to civil authorities in exchange for withdrawal of his habeas corpus petition. Had either case been decided on the merits, the military regime underpinning military Reconstruction most likely would have been declared unconstitutional. The Radicals’ theory that secession had disrupted the Union and reduced the seceded states to the status of conquered territories was rejected by the Supreme Court In Texas v. White (1869). The Court held that secession was unconstitutional, and that the seceded states had never left the Union but had come under the control of lawless elements that rejected the authority of the national government. In effect, the Civil War had been a massive federal police action to restore legitimate government in the South.

Mississippi v. Johnson (1867)

Georgia v. Stanton (1868)

Ex parte McCardle (1869)

Ex parte Yerger (1870)

Texas v. White (1869)

Fifteenth Amendment Concerned that the Fourteenth Amendment might not adequately protect the suffrage rights of blacks in the South, the Radicals wrote specific guarantees into the Constitution through the Fifteenth Amendment. The amendment was simple and categorical, providing that the right to vote “shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

Fifteenth Amendment (Annotated)

Fifteenth Amendment to the Constitution (with Links to Primary Sources)

Chapter 12

The Enforcement Acts Congress responded to the wave of racial violence and intimidation that swept the South to deny African Americans their voting rights with protective legislation under the Enforcement Clause of the Fifteenth Amendment. The Enforcement Act of 1870 (First Ku Klux Klan Act) provided “[t]hat all citizens of the United States who are or shall be otherwise qualified by law to vote at any election by the people in any State... shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude”. It criminalized the use of force, violence, or intimidation to prevent citizens from voting. The Enforcement Act of 1871 (Third Ku Klux Klan Act), passed pursuant to the Enforcement Clause of the Fourteenth Amendment, made it a federal crime to deprive citizens of their civil rights under the Fourteenth Amendment.

Act to Enforce the Right of Citizens of the United States to Vote in the Several States of this Union, and for Other Purposes (May 31, 1870)

Act to Enforce the Provisions of the Fourteenth Amendment (April 20, 1871)

Collector v. Day (1871) In Collector v. Day, the Supreme Court invalidated a federal income tax on the salaries of state judges on the ground that the state and federal government were separate sovereignties with reciprocal immunity from taxation.

Collector v. Day (1871)

The Slaughter-House Cases (1873) and Civil Rights In the Slaughter-House Cases, the Court narrowly construed the protection afforded by the Fourteenth Amendment’s protections. By a 5 to 4 vote, the Court held the rights arising from state and federal citizenship are different, and that the Privileges or Immunities Clause protects only the latter. These were defined so narrowly that the guarantees of the federal Bill of Rights were left unprotected against state abridgment. Although the case did not directly involve the rights of African Americans, the narrow interpretation of the amendment set the stage for encroachments upon the civil rights of blacks in the late nineteenth century.

Slaughter-House Cases (1873)

Voting Rights in the South In United States v. Reese (1876), the Supreme Court dismissed the prosecution of two Kentucky election officials for violating the Enforcement Act of 1870. Chief Justice Waite held that because they had acted as individuals and not on behalf of the state, they could not be prosecuted by the federal government. The Fourteenth Amendment applied only to state actions, not actions by individuals. By contrast, in Ex parte Yarbrough (1884) the Court upheld the conviction of a Georgia man for conspiring to intimidate a black voter in a federal election. The ruling was based not on the limited authority of Congress under the Fifteenth Amendment but on Article I of the Constitution, which confers upon Congress plenary power to regulate federal elections. In Reese, the Court also held that the Fifteenth Amendment did not confer suffrage rights on anyone, but only prevented the state and federal governments from disfranchising anyone on grounds of race or prior servitude. This enabled the southern states to abridge the voting rights of African Americans by passing voting restrictions that were not specifically based on race or prior servitude. Literacy tests and poll taxes, for example, applied to all voters, but were implemented in ways that discriminated against blacks. Such devices were nevertheless upheld as constitutional in Williams v. Mississippi (1898).

The Rise and Fall of Jim Crow (General Resources)

Pamphlet: “What a Colored Man Should Do to Vote”

United States v. Reese (1876)

Ex parte Yarbrough (1884)

Women’s Rights and the Fourteenth Amendment Proponents of women’s rights contended that the guarantees the Fourteenth Amendment applied to women as well as to male African Americans. But in Bradwell v. Illinois (1873) the Supreme Court held that the amendment did not prevent the states from excluding women from the practice of law. The Court upheld the exclusion on the ground that the practice of law was not among the privileges or immunities protected by the Fourteenth Amendment. The Court also held, in Minor v. Happersett (1875), that the states could deny women the right to vote because the Fourteenth Amendment only protected privileges or immunities that predated its ratification. Because women had neither the right to vote nor the right to practice law prior to the amendment, the rights claimed were not constitutionally protected.

The Declaration of Sentiments, Seneca Falls Conference (1848)

Bradwell v. Illinois (1873)

In Custodia Legis: Myra Bradwell

Minor v. Happersett (1875)

Virginia Minor and Women’s Right to Vote

The Supreme Court and Racial Violence In United States v. Cruikshank (1876) and United States v. Harris (1883), the Supreme Court invalidated key provisions of the Enforcement Acts of 1870 and 1871. In Cruikshank, the Court held that the protection afforded by the Fourteenth Amendment applied only to official actions by the states, not to violations perpetrated by individual citizens. In Harris, the Court underscored the distinction in dismissing federal charges against defendants who had participated in a lynch mob, ruling that the Fourteenth Amendment was “a guarantee of protection against the acts of the State Government itself . . . not a guarantee against the commission of individual offenses.” The federal government had no jurisdiction over the latter.

United States v. Cruikshank (1876)

United States v. Harris (1883)

Civil Rights Cases (1883) The Civil Rights Cases involved challenges to the provisions of the Civil Rights Act of 1875 guaranteeing equal access to public accommodations and conveyances regardless of race or prior servitude. The Court held that because the Fourteenth Amendment only prohibited states—not private individuals—from engaging in racial discrimination, Congress had no authority to proscribe discrimination by individuals.

Civil Rights Act of 1875

Civil Rights Cases (1883)

Racial Discrimination and Jury Trial In Strauder v. West Virginia (1880), the Court invalidated a statute barring blacks from jury service as a violation of the Equal Protection Clause of the Fourteenth Amendment. The decision was undermined by Virginia v. Rives (1880) upholding the conviction of an African American by an all-white jury. Because the absence of blacks from the jury could not be attributed to official state policy, there was no demonstrable Fourteenth Amendment violation.

Strauder v. West Virginia (1880)

Virginia v. Rives (1880)

Separate but Equal Doctrine Until Plessy v. Ferguson (1896), the Supreme Court had only upheld private acts of racial discrimination by individuals against Fourteenth Amendment challenges. But in Plessy the Court for the first time upheld official racial discrimination by a state. At issue was a Louisiana law requiring railroads to provide “equal but separate accommodations for the white, and colored races.” Speaking for the majority, Justice Brown held that so long as equal accommodations were provided for both races, there was no denial of equal protection of the laws in violation of the Fourteenth Amendment. The Court thus laid down the separate but equal doctrine that for the next half-century legalized the compulsory separation of the races throughout the South.

Hall v. DeCuir(1878)

Plessy v. Ferguson (1896)

Cumming v. Richmond County Board of Education (1899)

Gong-Lum v. Rice (1927)

Louisville, New Orleans, & Texas Railway Co. v. Mississippi (1890)

Changes in Court Personnel In 1869, Congress increased the membership of the Supreme Court from seven to nine justices. President Grant appointed William Strong and Joseph Bradley, both railroad lawyers, to the new posts. When Justice Nelson retired, Grant appointed Ward Hunt to replace him. And when Salmon P. Chase died in 1873, Grant appointed Morrison Waite, a corporation lawyer, to be Chief Justice. President Rutherford B. Hayes nominated John Marshall Harlan to the Court in 1877. Although once a slaveholder, Harlan became a steadfast champion for the rights of African Americans while on the Court. Hayes also appointed William B. Woods, Samuel Blatchford, and Stanley Matthews. Matthews’s background as a lawyer and lobbyist for railroad interests made him a controversial choice, but he was ultimately confirmed by the Senate. The Court became increasingly conservative with the appointment of eight new justices between 1888 and 1896. President Grover Cleveland nominated Lucius Q.C. Lamar, a former Confederate colonel, when Justice Woods died. And when Chief Justice Waite died, Cleveland replaced him with Melville Fuller. President Benjamin Harrison nominated David J. Brewer, Henry Brown, George Shiras, Jr., and Howell R. Jackson—all conservatives—to associate justiceships. Grover Cleveland, who was re-elected in 1892 after losing to Harrison in 1888, continued the conservative trend by appointing Edward D. White, a former Confederate officer, and Rufus H. Peckham, an influential corporation lawyer. This was the composition of the Court that presided over the rollback on the protection afforded African Americans by the Fourteenth and Fifteenth Amendments.

William Strong

Joseph Bradley

Ward Hunt

Morrison W. Waite

John M. Harlan

William B. Woods

Stanley Matthews

Horace Gray

Samuel Blatchford

Melville Fuller

David J. Brewer

Henry B. Brown

George Shiras, Jr.

Howell E. Jackson

Edward D. White

Rufus H. Peckham

Chapter 13

Legal Tender Acts In 1862 and 1863, Congress passed three Legal Tender Acts, each authorizing the issuance of paper currency to serve as legal tender for the payment of debts. Creditors challenged the measures, seeking the enforcement of preexisting agreements to pay debts in gold and silver. In Hepburn v. Griswold (1869), the Supreme Court invalidated the Legal Tender Acts by a 5–3 vote on the ground that they denied creditors of property without due process of law in violation of the Fifth Amendment. But with over $400 million of paper legal tender in circulation, the Court came under pressure to overturn the Hepburn ruling. President Grant’s new appointments to the Court set the stage for a reversal. In Knox v. Lee and Parker v. Davis (1871), the Court upheld the constitutionality of the acts by a 5–4 vote as a valid exercise of congressional power during the war emergency. The case did not uphold the power of Congress to issue paper money under any circumstances; that would come thirteen years later in Juilliard v. Greenman (1884) when the Court held that Congress has the power to do so in peacetime as well as wartime.

Online Exhibition: From Gold to Greenbacks

Hepburn v. Griswold (1869)

Knox v. Lee and Parker v. Davis (1871)

Juilliard v. Greenman(1884)

Towards Substantive Due Process State regulation of railway and warehouse charges raised due process issues under the Fourteenth Amendment. An Illinois regulation of grain elevators was challenged in Munn v. Illinois (1877) on the ground that it deprived the owners of property without due process of law. Chief Justice Waite upheld the law on the ground that property affected with a public interest is subject to public regulation. By making the power to regulate contingent on the existence of a public interest, the Court imposed a substantive limitation on the regulatory power of the states. It would be up to the courts to decide whether a public interest existed, while it would be up to the legislative branch to determine the reasonableness of the regulations.

Munn v. Illinois (1877)

Peik v. Chicago and Northwestern Railway Company (1877)

Wabash v. Illinois (1886)

Santa Clara County v. Southern Pacific Railroad (1886)

Triumph of Substantive Due Process Leaving the reasonableness of public regulations to the discretion of elected legislatures subject to the pressures of majoritarian politics increasingly fell into disfavor in the courts and among conservative members of the legal profession. The publication of Thomas M. Cooley’s influential Treatise on Constitutional Limitations went far to promote the view that the reasonableness issue was properly a subject for judicial review based on substantive standards of fairness with respect to due process of law. The first significant step toward judicial acceptance of substantive due process came in Stone v. Farmers’ Loan and Trust Company (1886), where the Court upheld a Mississippi statute under the public interest doctrine on the ground that the law was a reasonable regulation of private property. In St. Paul Railway Company v. Minnesota (1890) and Reagan v. Farmers’ Loan and Trust Company (1894), the Court went even further, ruling that reasonableness was ultimately a judicial question, making the Court an essential part of the regulatory process.

A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union (1868)

Stone v. Farmers’ Loan and Trust Company (1886)

St. Paul Railway Company v. Minnesota (1890)

Reagan v. Farmers ’ Loan and Trust Company (1894)

The “Fair Return” Doctrine The Court invalidated a rate schedule as unreasonable for the first time in Smyth v. Ames (1898) on the ground that the mandated rate did not provide owners with a fair return on the fair value of their property. The notion of “fair return” was essentially a policy matter that transferred to the courts determinations previously made by the legislative branch of government.

Smyth v. Ames (1898)

Willcox v. Consolidated Gas Company (1909)

United Railways and Electric Company v. West (1930)

The Origins of Federal Regulation Following the decision of the Court in Wabash v. Illinois (1886) that the interstate operations of railroads were not subject to state regulation, Congress in 1887 brought them under federal regulation by passing the Interstate Commerce Act. The act established the first federal regulatory agency: the Interstate Commerce Commission (ICC). The ICC had authority to hear complaints and disallow rates that it found unreasonable. The Court was hostile to the ICC from its inception, narrowly construing its authority and subjecting its findings to judicial review. By the end of the century the ICC had been reduced to little more than a fact-finding agency.

Interstate Commerce Act (1887)

Cincinnati, New Orleans, and Texas Pacific Railway Company v. Interstate Commerce Commission (1896)

Interstate Commerce Commission v. Cincinnati, New Orleans, and Texas Pacific Railway Company (1897)

Interstate Commerce Commission v. Alabama Midland Railway Company (1897)

Interstate Commerce Commission v. Chicago, Milwaukee, and St. Paul Railway Company (1890)

Regulating Monopolies Both Democrats and Republicans agreed on the need to address the problem of monopolies that controlled key industries in the United States. In 1890, Congress passed the Sherman Antitrust Act, which outlawed combinations and conspiracies in restraint of interstate or foreign commerce. The Court virtually nullified the act in United States v. E.C. Knight Company (1895) by holding that it applied only to commerce and not to manufacture, thereby leaving the latter free of federal regulation.

Sherman Antitrust Act (1890)

United States v. E.C. Knight Company (1895)

Organized Labor and the Courts Companies threatened by labor strikes found a powerful weapon in the strike injunction. Where it appeared that irreparable harm would result from a strike, employers could obtain a temporary injunction against it without notice or hearing. The constitutionality of such injunctions was challenged by In re Debs (1895), a case arising from the Pullman strike of 1894. The injunction had been obtained by the Cleveland administration on the ground that the strike disrupted interstate commerce. The Supreme Court upheld the injunction, dealing organized labor a significant setback.

Pullman Strike Timeline

In re Debs (1895)

Proposals for a Federal Income Tax In the late nineteenth century, proposals for an income tax became part of reformers’ campaign for social change. Excise taxes and tariffs were borne disproportionately by the poor while enormous incomes went untaxed. But many conservatives argued that such a tax would be the opening wedge of an attack on property rights and a redistribution of wealth that would ultimately lead to socialism. In Springer v. United States (1881), the Supreme Court upheld the constitutionality of an income tax enacted by Congress during the Civil War. Reassured by that precedent, Congress passed a 2% income tax on all income over $4,000 a year. The tax was immediately challenged in Pollock v. Farmers’ Loan and Trust Company (1895). The Court not only ignored Springer but distorted the traditional understanding of the Article I constraints on direct taxes to invalidate the entire law.

Springer v. United States (1881)

Pollock v. Farmers’ Loan and Trust Company (1895)

Substantive Due Process and the Bill of Rights The triumph of substantive due process with respect to the Court’s regulatory jurisprudence facilitated the incorporation of federal Bill of Rights guarantees into the Due Process Clause of the Fourteenth Amendment. A federal guarantee identified as an essential part of due process would therefore apply against the states as well as against the federal government. The process began in Chicago, Burlington & Quincy Railroad Company v. Chicago (1897) when, for the first time, the Court held that the states are bound under the Fourteenth Amendment by the just compensation guarantee of the Fifth Amendment. The process would be slow and uneven but eventually most of the federal guarantees would extend to the states through the Fourteenth Amendment.

Chicago, Burlington & Quincy Railroad Company v. Chicago (1897)

Allgeyer v. Louisiana (1897)

Hurtado v. California (1884)

Maxwell v. Dow (1900)

Freedom of Contract The reasonableness standard for public regulation had a tortured history in the hands of the Court. In Holden v. Hardy (1898), the Court held labor regulations applicable to mines, smelters, and ore refineries reasonable and constitutional, but in Lochner v. New York (1905) the Court struck down similar regulations for workers in commercial bakeries as unreasonable and therefore unconstitutional. The judicial vagaries of the reasonableness standard prompted lawyers to change the way they argued cases. Their briefs now included not only legal arguments and case precedents, but masses of medical, social, and statistical data on the reasonableness of the regulation at issue. Such arguments were effective in upholding regulatory legislation in Muller v. Bunting (1908) and Bunting v. Oregon (1917) as reasonable exercises of state police powers.

Holden v. Hardy (1898)

Lochner v. New York (1905)

Muller v. Oregon (1908)

Bunting v. Oregon (1917)

Chapter 14


Progressivism was not a monolithic political movement, but rather an attitude marked by a belief in reform, progress, and the involvement of government in the everyday life of the nation. Progressives rejected the laissez-faire principles that had guided public policy in the late nineteenth century, embracing instead the idea of government as an active partner in shaping the American future. The Progressives sought to reform and modernize government at both local and national levels. At the local level, Progressives sought to end corrupt politics, provide relief to the poor, establish public health programs, and clean up the teeming slums of America’s industrial cities. At the national level, they supported the passage of regulatory and protective legislation, as well as the adoption of constitutional amendments advancing the goals of their reform agenda.

Online Exhibit: Progressive Era to New Era, 1900–1929

Interactive Timeline: Progressive Era to New Era, 1900–1929

Speech by Theodore Roosevelt (April 15, 1906)

Herbert Croly, The Promise of American Life (1909)

Upton Sinclair, The Jungle (1906)

Online Exhibit: Photography of Jacob Riis

Essay: “The Woman Who Took on the Tycoon”

Pure Food and Drug Act (1906)

Meat Inspection Act (1906)

White Slavery Act /Mann Act (1910)

Background on the Mann Act

Phosphorous Match Act (1912)

Harrison Narcotics Act (1914)

Child Labor Act (1916)

Changes in Court Personnel

When Justice Steven J. Field resigned from the Court in 1897, President McKinley appointed Joseph McKenna, who generally supported Progressive reforms from the bench. Theodore Roosevelt, who succeeded McKinley as president, appointed Oliver Wendell Holmes, Jr., William R. Day, and William H. Moody in the hope of protecting his trust-busting agenda against judicial challenges. Similarly, President Taft’s appointments of Charles Evans Hughes, Willis Van Devanter, and Mahlon Pitney strengthened the hand of progressivism on the Court, as did President Wilson’s appointments of James C. McReynolds, Louis D. Brandeis, and John H. Clarke. The new century thus began with a more reform-minded court than before, almost evenly divided between conservatives and liberals. Some of these justices ended their careers on the bench as extreme conservatives, but they were not viewed as such at the time of their appointment.

Joseph McKenna

Oliver Wendell Holmes, Jr.

William H. Moody

Horace H. Lurton

Charles Evans Hughes

Willis Van Devanter

Joseph R. Lamar

Mahlon Pitney

James C. McReynolds

Louis D. Brandeis

John H. Clarke

Federal Police Powers Upheld

The Supreme Court set the stage for the sweeping exercise of federal regulatory power in Champion v. Ames and McCray v. United States. In Champion, the Court held that so long as Congress has the power to act under the Commerce Clause, its purpose in legislating is not subject to judicial review. Similarly, in McCray, the Court held that Congress’s exercise of the tax power is not subject to any purpose tests. In effect, the tax and commerce powers can be used by Congress for regulatory purposes not primarily involving taxation or commerce. Together, these holdings opened up vast vistas for the exercise of federal power.

Champion v. Ames (1903)

McCray v. United States (1904)

Hipolite Egg Company v. United States (1911)

Hoke v. United States (1913)

Pittsburgh Melting Company v. Totten (1918)

Adair v. United States (1908)

Coppage v. Kansas (1915)

Hammer v. Dagenhart (1918)

Restraints on the States

While the Court upheld expansive federal police powers, it limited the exercise of state police powers. In Lochner v. New York (1906), a narrowly divided court voted 5-4 to strike down a New York law limiting employment in commercial bakeries to a 10-hour workday. The majority was not satisfied that there was a sufficient health risk involved in such employment to justify a limitation on the hours of labor. The case was something of an anomaly given the Court’s accommodative approach to federal regulation during the Progressive Era.

Lochner v. New York (1906)

Trust-Busting and the Court

President Theodore Roosevelt undertook more prosecutions under the Sherman Anti-Trust Act than had been brought by any of his predecessors. The Court accommodated his antitrust campaign by abandoning the narrow interpretation it had given to the statute in United States v. E.C. Knight (1895). In Northern Securities Company v. United States (1904), the Court held that restraints on competition also constitute restraints on trade under the act.

Sherman Anti-Trust Act (1890)

Theodore Roosevelt’s First Annual Message to Congress, December 3, 1901

Northern Securities Company v. United States (1904)

Stream of Commerce Theory

In Swift and Company v. United States (1905), the Court upheld an injunction against price-fixing agreements between meat-packing houses in Chicago on the ground that the agreements affected the distribution of livestock and meat across state lines. The holding abandoned the narrow interpretation of commerce adopted by the Court in the E.C. Knight case, bringing virtually every aspect of productive enterprise within Congress’s regulatory powers under the Commerce Clause.

Swift and Company v. United States (1905)

The Rule of Reason Doctrine

A major obstacle to trust-busting in the early twentieth century was the common-law rule of reason doctrine that only unreasonable combinations are unlawful. In Standard Oil of New Jersey v. United States (1911), the Court held, as a matter of statutory construction, that the Sherman Anti-Trust Act prohibited only unreasonable combinations in restraint of trade. This interpretation of the law kept some of the most powerful corporations in America beyond the reach of the trust-busters.

United States v. Trans-Missouri Freight Association (1897)

Standard Oil of New Jersey v. United States (1911)

United States v. American Tobacco Company (1911)

United States v. Winslow (1913)

United States v. United States Steel Corporation(1920)

Labor Unions and the Sherman Act

In the Danbury Hatters Case (1908), the Supreme Court unanimously held that combinations of workers were to be treated no differently from business combinations. The Sherman Act thus became a powerful weapon for use against organized labor.

Danbury Hatters Case (Loewe v. Lawlor) (1908)

Reviving and Strengthening the ICC

Illinois Central Railroad Co. v. ICC (1907) and ICC v. Illinois (1910) began to restore some of the power that had been stripped from the ICC by the Fuller Court. In these cases, the Court held that it would not review factual findings or policies underlying the decisions of the Interstate Commerce Commission. Rather, the Court would review only whether the Commission had the authority to issue a decision in the first place. These rulings paved the way for grants of power by Congress to other regulatory agencies.

Illinois Central Railroad Company v. Interstate Commerce Commission (1907)

Interstate Commerce Commission v. Illinois (1910)

United States v. Atchison, Topeka, and Santa Fe Railroad Company (1914)

Minnesota Rate Cases (1913)

Shreveport Case (1914)

The New Freedom

Woodrow Wilson was elected president by promising Americans a “New Freedom.” He pledged to restore to individuals the freedom they had lost at the hands of unchecked corporations and exploitative employers. As president, Wilson undertook a number of initiatives to lower tariffs and increase the amount of regulation to which businesses were subjected. His administration passed laws governing worker’s compensation, child labor, and farm loans. These measures mark the final phase of progressivism before the enthusiasm for reform became a casualty of the nation’s entry into World War I.

Federal Trade Commission Act (1914)

Clayton Antitrust Act (1914)

Workmen’s Compensation Act (1916)

Keating-Owens Act (1916)

Farm Loan Act (1916)

Judiciary Act of 1914

The Judiciary Act of 1914 resolved a problem caused by Section 25 of the Federal Judiciary Act of 1789, under which the Supreme Court could only take appeals from state courts when the latter failed to uphold a right claimed under the Constitution, law, or treaty of the United States. Because no review was possible when the right claimed was upheld, the state courts in some cases had the last word in matters of federal law. The upshot was that the interpretation of federal law sometimes differed from state to state. The Judiciary Act of 1914 corrected this undesirable double standard by authorizing appeals from the state courts to the Supreme Court in all cases involving federal issues.

Judiciary Act of 1914

Sixteenth Amendment

The Sixteenth Amendment confers upon Congress the power to levy an income tax. The introduction of a federal income tax ensured that the wealthy shared the burden of paying for government. It also ensured that the federal government had the tax revenues with which to expand its regulatory functions.


Sixteenth Amendment (Annotated)

Ratification of the Sixteenth Amendment

Seventeenth Amendment

The ratification of the Seventeenth Amendment was one of the Progressives’ most significant victories. By providing for the direct election of senators, the amendment made government more truly representative of the people and therefore, Progressives believed, more responsive to the nation’s needs.

Seventeenth Amendment (Annotated)

Ratification of the Seventeenth Amendment


The Prohibition movement long predated progressivism, but the emphasis of the latter on social reform was a key factor in its ultimate success with the ratification of the Eighteenth Amendment. World War I also helped by giving the conservation of grain used to produce alcoholic beverages the gloss of patriotism as a war measure. Challenges to the amendment were rejected by the Supreme Court in Rhode Island v. Palmer (1920) and Dillon v. Gloss (1921).

Eighteenth Amendment (Annotated)

Temperance and Prohibition

Clark Distilling Company v. Western Maryland Railway Company (1917)

The Volstead Act (192)

Rhode Island v. Palmer (1920)

Dillon v. Gloss (1921)

Women’s Rights

Like Prohibition, the campaign for women’s suffrage was energized by progressives’ zeal for reform. And like the Prohibition Amendment, the campaign for women’s suffrage drew strength by the conditions of World War I, specifically the entry of women into the labor force. Women’s contributions to the war effort begged the question why they should not also have the right to vote. The answer came in 1920 with the ratification of the Nineteenth Amendment.

Susan B. Anthony, “Is It a Crime for a Citizen of the United States to Vote?”(1873)

Ratification of the Nineteenth Amendment

Nineteenth Amendment (Annotated)

Problems of Empire

By the early twentieth century, the United States had acquired diverse and far-flung territories throughout the world. In 1867, the United States purchased Alaska from Russia, and in the 1890s acquired part of Samoa and the Hawaiian Islands. The nation also acquired Puerto Rico, Guam, and the Philippines in the wake of the Spanish-American War. The challenges of governing these distant territories and their inhabitants raised questions about their constitutional status. The Supreme Court dealt with these issues in the Insular Cases, defining the constitutional status of the nation’s overseas empire.

Philippine-American War

Emilio Aguinaldo

Proclamation of Benevolent Assimilation (December 21, 1898)

De Lima v. Bidwell (1901)

Downes v. Bidwell (1901)

Hawaii v. Mankichi (1903)

Dorr v. United States (1904)

Rassmussen v. United States (1905)

Balzac v. Porto Rico (1922)

Chapter 15

World War I

When war erupted in Europe in 1914, the United States took an official position of neutrality. But the brutality of the German invasion of neutral Belgium convinced many Americans to support the Allied cause. The U.S. government provided loans to Allied nations and sold Allied nations American goods to help the cause. These measures were inconsistent with official neutrality, and provoked confrontation with Germany.

Interactive Timeline of WWI

The Great War and the Shaping of the Twentieth Century

World War I Audio Files

The Sinking of the Lusitania

The invention of submarines introduced new horrors to warfare. Submarines could travel unseen and strike civilian vessels indiscriminately, inflicting mass casualties in violation of existing laws of war. The sinking of the British passenger liner Lusitania sent a wave of revulsion through the United States. More than a thousand were killed, many of them Americans. While American sympathies were with the Allies, the nation was not yet willing to enter the war. In 1916 President Wilson secured a promise from Germany that it would abandon unrestricted submarine warfare. This agreement won him the election that year on the slogan, “He kept us out of war.”

Lost Liners: The Lusitania

Admiral von Holtzendorff on the need for unrestricted submarine warfare (December 22, 1916)

Mobilizing for Total War

In January, the German government informed President Wilson that it was returning to its policy of unrestricted submarine warfare. The sinking of several American ships in the following months brought America to war. On April 2, 1917, he called upon Congress to declare war on Germany. On April 6, Congress obliged.

Wilson’s War Message to Congress (April 2, 1917)'s_War_Message_to_Congress

“Joint Resolution Declaring that a state of war exists between the Imperial German Government and the Government and the people of the United States and making provision to prosecute the same.” (at p. 83)

Mobilizing for Total War

World War I required that the United States coordinate all its resources in the war effort. Congress enacted the Selective Service Act in 1917 to ensure that there were enough men to fight. It also began conscripting the nation’s economic resources into the war effort through such administrative measures as the War Industries Board, the Fuel Administration, the War Labor Conference Board, and the Food Administration.

Selective Service Act of 1917

“Food Will Win the War: On the Home Front in World War I”

Wartime Thought Control

In order to promote support for the war, the Wilson administration launched a coordinated propaganda campaign through the Committee on Public Information. Under the leadership of George Creel, the committee inundated the nation with images, pamphlets, speeches, cartoons, and movies.

Executive Order 2594: Creating Committee on Public Information (April 13, 1917)

Online Exhibition: “Poster Art of World War I”

“Four Minute Men: Volunteer Speeches during World War I”

How We Advertised America: The First Telling of the Amazing Story of the Committee on Public Information that Carried the Gospel of Americanism to Every Corner of the Globe, by George Creel (1920)

Suppressing Dissent

The Espionage and Sedition Acts provided the federal government with a legal basis for the suppression of dissent. The laws were so sweeping that virtually any speech could be construed as antiwar speech. Books about Germany were excluded from the mail, financial advisors could be investigated for steering clients away from war bonds, and vigilance committees reported private conversations to the authorities.

Espionage Act (1917)

Sedition Act (1918)

War Powers Cases

The Supreme Court was remarkably quiescent in the Wilson administration’s wartime measures. It upheld the draft as constitutional, along with price controls, rent controls, and railroad seizures. All were construed as valid exercises of the war powers.

Selective Draft Law Cases (Arver v. United States)

Hamilton v. Kentucky Distilleries Company (1919)

Northern Pacific Railway Company v. North Dakota (1919)

Ruppert v. Caffey (1920)

United States v. L. Cohen Grocery Company (1921)

Block v. Hirsh (1921)

First Amendment Rights

The fate of First Amendment rights is one of the most troubling chapters in the history of World War I. In Schenck v. United States, Justice Holmes formulated the “clear and present danger” test of speech: “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Far more insidious was the “bad tendency” test adopted by the Court in Abrams v. United States. Under it, speech that simply contained a “bad tendency” warranted a conviction.

Schenck v. United States

Debs v. United States (1919)

Abrams v. United States (1919)

Pierce v. United States (1920)

Rejection of the League of Nations

The war ended on a note of frustration for the Wilson administration, which failed to secure the ratification of the Treaty of Versailles. The treaty was viewed in the United States as punitive and vindictive. But rather than seeking out compromise on points of the treaty with domestic opponents, Wilson took a hardline stance that cost him his most cherished goal: U.S. membership in the League of Nations, an organization constituted under the treaty for the purpose of securing peace.

League of Nations

The Covenant of the League of Nations

League of Nations Photo Archive

“Topics in Chronicling America: League of Nations”

Chapter 16

The Return to Normalcy

In the wake of World War I, the optimism and idealism of the Progressive Era gave way to a sense of complacency. Warren Harding was elected president by promising the nation a return to normalcy. “America’s present need is not heroics, but healing,” he declared. “[N]ot nostrums, but normalcy; not revolution, but restoration; not agitation, but adjustment; not surgery, but serenity; not the dramatic, but the dispassionate; not experiment, but equipoise; not submergence in internationality, but sustainment in triumphant nationality.” His administration was marked by corruption, cronyism, and scandal. His successor, Calvin Coolidge, restored to the office of the President the integrity and dignity it had lost under the Harding administration.

Warren G. Harding

The “Return to Normalcy” Speech (May 14, 1920)

Graft and Oil: How Teapot Dome Became the Greatest Political Scandal of Its Time, by Robert W. Cherny

Calvin Coolidge

Repeal of Prohibition

The “Noble Experiment” of Prohibition proved an abject failure. Rather than eliminating the consumption of alcohol, the ban turned drinking into a fashionable form of social protest. In addition, Prohibition proved a boon to organized crime, which used the proceeds of smuggling to bribe public officials and finance other illegal enterprises. Prohibition was finally repealed in 1933 with the passage of the Twenty-First Amendment.

Repeal of the Eighteenth Amendment (Twenty-First Amendment)

Article: “Prohibition Repeal Is Ratified at 5:32 P.M.; Roosevelt Asks Nation to Bar the Saloon; New York Celebrates with Quiet Restraint” (New York Times; December 5, 1933)

Twenty-First Amendment (Annotated)

New Justices Appointed to the Court

When Chief Justice White died, former president William Howard Taft was appointed to succeed him. His appointment marked a turning point for the court as it moved away from the liberalism of the Progressive Era to a more conservative stance.

William Howard Taft

George Sutherland

Pierce Butler

Edward T. Sanford

Harlan F. Stone

Judges’ Bill of 1925

The Judges’ Bill of 1925 gave the Supreme Court almost complete control over its appellate functions. All appeals thereafter had to be brought through a petition for a writ of certiorari. The Court could grant or deny the writ without ruling on the merits of the case. In order to grant a writ of certiorari, four of the nine justices had to vote in favor of it.

Judges’ Bill of 1925

The Taft Court

As chief justice, Taft favored strict construction of the Constitution. He believed that the Court’s proper role was not to rationalize social experiments, but to keep government from overstepping the bounds set by the framers. In Hammer v. Dagenhart, the Court held that the Child Labor Act of 1916 was an unconstitutional encroachment upon powers reserved to the states under the Tenth Amendment. In Bailey v. Drexel Furniture Company the Court held that the federal government could not do by taxation what it could not do through express prohibition. Taxes could not be used as a penalty for regulatory purposes.

Hammer v. Dagenhart (1918)

Bailey v. Drexel Furniture Company (1922)

Organized Labor and the Court

The Clayton Act, which excluded organized labor from the provisions of federal antitrust statutes, was hailed as a major victory for labor unions. The Taft Court interpreted the act narrowly, upholding the labor injunction in Duplex Printing Company v. Deering and Truax v. Corrigan. The Court was also evenhanded in dealing with unions, ruling in the United Mine Workers and United Leather Workers’ Union cases that the employers in question had not proven the unions civilly liable under the Sherman Act.

The Clayton Act (1918)

Duplex Printing Company v. Deering (1921)

Truax v. Corrigan (1921)

Union Mine Workers v. Coronado Company (1922)

United Leather Workers’ Union v. Herkert & Meisel (1924)


The Taft Court and Public Regulation

The Taft Court invalidated a number of federal and state measures establishing minimum wages and labor standards. The Court ignored or overruled precedents of the Progressive Era in favor of the absolute protection of property rights. But where personal liberty was in question, the Court was more tolerant of state regulation. In Buck v. Bell the Court upheld a Virginia statute providing for compulsory sterilization of inmates at state-supported institutions.

Adkins v. Children’s Hospital (1923)

Muller v. Oregon (1908)

Bunting v. Oregon (1917)

Lochner v. New York (1905)

Wolff Packing Company v. Court of Industrial Relations (1923)

Schmidinger v. Chicago (1913)

Tyson v. Banton (1927)

Ribnik v. McBride (1928)

Williams v. Standard Oil Company (1929)

Buck v. Bell (1927)

Eugenics. “Three Generations, No Imbeciles: Virginia, Eugenics & Buck v. Bell”

Federal Commerce Power

The commerce clause jurisprudence of the Taft court is one of its most enduring legacies. In Stafford v. Wallace, the Court ruled that the stream of commerce doctrine propounded in Swift and Company v. United States had become “a fixed rule of this court.” Building upon that rule, the Taft Court upheld several federal regulations as legitimate exercises of the commerce power.

Stafford v. Wallace (1922)

Railroad Commission of Wisconsin v. C.B. & Q. Railway Company (1922)

Brooks v. United States (1925)

The Treaty Power

In Missouri v. Holland, the Court held that the federal government’s treaty powers are not limited by the Tenth Amendment. In theory, any power reserved to the states under the Tenth Amendment might be taken over by the federal government pursuant to a treaty. The one limitation on the power is that the federal government may not use the treaty power to contravene any of the express prohibitions of the Constitution.

Missouri v. Holland (1920)

Federal Grants-in-Aid

In Massachusetts v. Mellon, the Court upheld the constitutionality of federal grants-in-aid, through which Congress appropriates money to states for purposes beyond the jurisdiction of the federal government. The holding made possible the expansion of federal power through the funding of state programs.

Massachusetts v. Mellon (1923)

The Executive Power of Removal

In Myers v. United States the Court ruled once and for all on the constitutionality of the Tenure of Office Act, holding that it was an unconstitutional restraint on the president’s removal power.

Myers v. United States (1926)

Liberty and the Court

The Taft Court built upon the Allgeyer precedent in finding that the Due Process Clause of the Fourteenth Amendment protects individual liberty from certain kinds of government encroachment. While Allgeyer only extended that protection from encroachments upon freedom of contract, the Taft Court extended it to other types of interests, including life and liberty.

Allgeyer v. Louisiana (1897)

Moore v. Dempsey (1923)

Meyer v. Nebraska (1923)

Whitney v. California (1927)

Fiske v. Kansas (1927)

Hoover’s Appointments

The Great Depression prompted a political reaction that put President Hoover and congressional Republicans on the defensive. Hoover’s nominations to the Court were hotly contested. In the end, though, Charles Evans Hughes was promoted to the chief justiceship and Owen Roberts and Benjamin Cardozo joined the Court as associate justices.

Owen J. Roberts

Benjamin N. Cardozo

Extending the Guarantees of the Bill of Rights

The Hughes Court made great progress in incorporating the key guarantees of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment. The process began with bold rulings on First Amendment and Sixth Amendment rights. The Hughes Court would accomplish on a case-by-case basis what the Chase Court had declined to do outright in the Slaughter-House Cases.

Stromberg v. California (1931)

Near v. Minnesota (1931)

Powell v. Alabama (1932)

Chapter 17

The Great Depression

Although the causes of the Great Depression are subject to much academic debate, there is no question that the Depression was one of the most serious domestic crises in U.S. history. Every sector of the economy was impacted, from agriculture to manufacture. The contraction of the economy left one-quarter of the American workforce unemployed, while the standard of living dropped for those who remained employed. Shantytowns—dubbed Hoovervilles for the president upon whom many blamed the Depression—sprang up across the nation, populated by homeless families no longer able to pay for shelter.

Timeline of the Great Depression

Newspaper Excerpts: The Stock Market Crash of 1929

Online Library of Primary Sources: Great Depression and World War II, 1929–1945

Online Exhibit: Photographing the People of the Depression

Article: “What Can We Learn from the Great Depression?”

Twentieth Amendment

Until the ratification of the Twentieth Amendment in 1933, the outgoing president spent four months in office before the inauguration of the new chief executive. The Lame Duck Amendment, as it was called, provided that the new Congress would convene on January 3 and that the president and vice president would take office on January 20.

Senate Judiciary Report on the Twentieth Amendment

The Constitution and the Inauguration of the President

Twentieth Amendment (Annotated)

Roosevelt Takes Charge

The Republican party was repudiated at the polls in the 1932 presidential election. Franklin Delano Roosevelt won a landslide victory by promising the nation a New Deal that would restore the American economy to prosperity. In his inaugural address, Roosevelt committed his administration to programs of unprecedented governmental intervention to pull the nation from the grips of the Depression. “This nation asks for action,” he said, “and action now. Our greatest primary task is to put people to work. This is no unsolvable problem if we face it wisely and courageously. It can be accomplished in part by direct recruiting by the Government itself, treating the task as we would treat the emergency of a war, but at the same time, through this employment, accomplishing greatly needed projects to stimulate and reorganize the use of our natural resources.”

Franklin Delano Roosevelt

1933 News Reel: Roosevelt’s Inauguration

First Inaugural Address of Franklin Delano Roosevelt (March 4, 1933)

Saving the Banks

A banking crisis swept the nation as businesses and homeowners defaulted on their debts and Americans, fearing bank closures, withdrew their deposits. By March of 1933, nearly every state had passed measures suspending or limiting ordinary banking activities. One of Roosevelt’s first actions as president was to issue a series of executive orders, subsequently enacted into law by Congress, to stabilize the banking system.

Fireside Chat on the Banking Crisis (March 12, 1933)—Full Text

Fireside Chat 1: “On the Banking Crisis” (March 12, 1933)—Audio Excerpt

Emergency Banking Act of 1933

Executive Order 6102: Requiring Gold Coin, Gold Bullion, and Gold Certificates to Be Delivered to the Government (April 5, 1933)

Recovery Measures

In the first three months of Roosevelt’s presidency, Congress enacted legislation providing the bare minimum of relief needed to prevent widespread social upheaval. The traditional assumptions of American life seemed to have failed, and Roosevelt sought to restore confidence to the nation. The Agricultural Adjustment Act and the National Industrial Recovery Act raised income levels in agriculture and industry. The Tennessee Valley Authority promoted economic development in some of the most depressed areas of the country, and the Civilian Conservation Corps and Public Works Administration created jobs conserving and developing the public infrastructure.

Online Exhibit: America’s Great Depression and Roosevelt’s New Deal

Agricultural Adjustment Act (1933)

National Industrial Recovery Act (1933)

Tennessee Valley Authority Act (1933)

Tennessee Valley Authority

Essay: The Federal Emergency Relief Administration (FERA)

The New Deal Network (includes library of primary sources organized by topic)

The Second New Deal

In 1935 Roosevelt implemented a second wave of New Deal programs focusing on social and economic reform. The Works Progress Administration put millions of workers on the government payroll with projects ranging from public works to cultural programs. The National Youth Administration employed people between the ages of 16 and 25. The National Labor Relations Act created a board to deal with labor grievances and settle strikes. Measures such as wage-and-hour legislation and the Social Security Act of 1935 provided direct relief to the aged and unemployed.

Slideshow: FDR, the WPA, and the New Deal Arts Programs

Online Collection: Posters from the WPA

“America’s Unfinished Business,” Address of Florence S. Kerr, Assistant Administrator of the Works Progress Administration (May 6, 1939)

National Youth Administration

National Labor Relations Act (1935)

FDR and Housing Legislation

State Recovery Measures

In Home Building Association v. Blaisdell (1934) the Supreme Court narrowly upheld state legislation protecting debtors from foreclosure as a valid exercise of state police powers. The dissenting justices viewed such laws as clear violations of the Contract Clause of the Constitution.

Home Building Association v. Blaisdell (1934)

Public Interest Doctrine Abandoned

Starting with Nebbia v. New York (1934), the Supreme Court abandoned the public interest doctrine limiting public regulation, thus paving the way for state regulation of virtually any business so long as the measures reasonably promoted the general welfare .

Nebbia v. New York (1934)

Gold Clause Cases

Some of the New Deal emergency measures involved monetary policy, specifically, the cancellation of contract clauses calling for the payment of debts in gold. In what came to be known as the Gold Clause Cases, the Supreme Court narrowly upheld the cancellation of such provisions as a valid exercise of Congress’s power over the monetary system. The cases represented a major victory for New Deal’s recovery program.

Norman v. Baltimore and Ohio Railroad Company (1935)

Nortz v. United States (1935)

Perry v. United States (1935)

New Deal Setbacks

While the Supreme Court upheld the New Deal on monetary policy, its regulatory programs did not fare as well. Legislation creating retirement benefits for interstate railroad employees, measures protecting farmers from foreclosure, and laws regulating wages and hours were overturned as violations of the Due Process Clause of the Fifth Amendment and the Commerce Clause. In addition, the authority of the president to remove members of federal regulatory commissions was held to violate the constitutional separation of powers.

Panama Refining Company v. Ryan (1935)

Retirement Board v. Alton Railroad Company (1935)

Louisville Joint Stock Land Bank Company v. Radford (1935)

Humphrey’s Executor v. United States (1935)

Myers v. United States (1926)

Schechter Poultry Corporation v. United States (1935)

Roosevelt and the Court

Roosevelt made no attempt to conceal his frustration with the Court. In a press conference of May 31, 1935, he likened the Schechter Poultry decision to the Dred Scott case in its historical import and accused the Court of being out of touch with the needs of the nation. When the Court struck down even more recovery measures the following year, many New Dealers urged the president to take action.

FDR Press Conference (May 31, 1935)

United States v. Butler (1936)

Carter v. Carter Coal Company (1936)

Ashton v. Cameron County Water District (1936)

Ashwander v. Tennessee Valley Authority (1936)

Morehead v. New York ex rel. Tipaldo (1936)

Roosevelt’s Court Plan

Democratic victory in the 1936 elections prompted Roosevelt to take action against judicial opposition to the New Deal program. In February of 1937 Roosevelt presented Congress with a plan for the reorganization of the federal judiciary. The proposal included appointing additional judges at every level of the judiciary to counter the influence of older judges thought to be out of touch with the needs of the nation. The proposal backfired badly and was rejected as an attack on the independence of the judiciary. Its defeat had far-reaching consequences in shoring up congressional opposition to other New Deal proposals.

Statement by Frank E. Gannett on Roosevelt’s Court Packing Plan (February 23, 1937)

President Roosevelt’s Fireside Chat on “Court-Packing” (March 9, 1937)

Article: “When Franklin Roosevelt Clashed with the Supreme Court—and Lost,” by William E. Leuchtenburg

West Coast Hotel Company v. Parrish (1937)

National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937)

National Labor Relations Board v. Friedman-Harry Marks Clothing Company (1937)

Steward Machine Company v. Davis (1937)

Helvering v. Davis (1937)

Chapter 18

New Court Personnel

The justices President Roosevelt appointed to the Supreme Court would preside over an historic shift in judicial priorities. The New Deal Court gave government the widest leeway with respect to the public regulation of business and property. In order to pass constitutional muster, regulatory legislation only had to have a rational basis related to a legitimate legislative purpose. On the other hand, legislation affecting civil rights and liberties would be subject to a higher standard of judicial scrutiny.

Hugo L. Black

Stanley F. Reed

Felix Frankfurter

William O. Douglas

Frank Murphy

Robert H. Jackson

Harlan F. Stone

James F. Byrnes

The Commerce Power Unrestrained

The New Deal Court expanded the scope of Commerce Clause jurisprudence in a series of groundbreaking cases. The Court ruled in Darby (1941) that Congress’s exercise of the commerce power is not restrained by the Tenth Amendment. It stretched the Commerce Clause even further in Wickard (1942) and Edwards (1941) to regulate the conduct of private persons in activities only indirectly related to interstate commerce.

United States v. Darby Lumber Co. (1941)

Wickard v. Filburn (1942)

Article: Jim Chen, “The Story of Wickard v. Filburn: Agriculture, Aggregation, and Commerce”

Edwards v. California (1941)

The Dormant Commerce Clause Doctrine

The Court expanded on the dormant commerce clause doctrine developed over a century earlier by the Marshall Court. In H.P. Hood (1949) the Court invalidated a New York state licensing measure as a violation of the commerce power even where the federal government had not acted on the issue.

H.P. Hood & Sons v. Du Mond (1949)

No Federal Common Law

In Erie Railroad Company v. Tompkins (1938) the Supreme Court overturned the rule of Swift v. Tyson (1842). The Erie Court held that federal courts exercising diversity of citizenship jurisdiction must apply all the law of the states in which they sit, case law as well as statutes, thereby voiding nearly a century of federal common law.

Erie Railroad Company v. Tompkins (1938)

Selective Incorporation of the Bill of Rights

Although the New Deal Court virtually abandoned substantive due process with respect to property rights, it applied the doctrine with renewed vigor to protect civil and political liberties. Individual guarantees of the Bill of Rights were selectively enforced against states through the Due Process Clause of the Fourteenth Amendment. Among the first guarantees enforced at the state level were the right to counsel in capital cases and freedom of press.

Near v. Minnesota (1931)

Powell v. Alabama (1932)

Palko v. Connecticut (1937)

The Total Incorporation Theory

Justice Black rejected selective incorporation of some of the guarantees of the federal Bill of Rights and advocated instead extending all the federal guarantees to the states. Although his views nearly prevailed in Adamson v. California, the Court, for essentially pragmatic reasons, remained committed to selective incorporation.

Adamson v. California (1947)

Betts v. Brady (1942)

Expanding First Amendment Rights

The Court vigilantly protected the First Amendment rights of groups and individuals engaged in public protests and demonstrations, such as picketing and parades. While public authorities could regulate such activities in preserving public order, they could not do so arbitrarily. All regulations of public speech had to be reasonable and consistent with the underlying constitutional right to engage in the activity being regulated.

Thornhill v. Alabama (1940)

American Federation of Labor v. Swing (1941)

Carpenters and Joiners Union v. Ritter’s Café (1942)

Hague v. CIO (1939)

Cox v. New Hampshire (1941)

Political Dissent

The Court even extended First Amendment protection to speech calling for the overthrow of the government. So long as such speech did not pose a clear and present danger to public safely, it was protected by the Constitution.

DeJonge v. Oregon (1937)

Herndon v. Lowry (1937)

The Preferred Rights Doctrine

In Thomas v. Collins (1944) the Supreme Court went a step further, holding that laws restricting First Amendment rights do not enjoy the usual presumption of constitutionality. The reason, the majority explained, is that certain rights enjoy a preferred place in the constitutional scheme of things. This resulted in a double standard of constitutional interpretation, wherein some statutes would enjoy the presumption of constitutionality, while others would be treated as presumptively unconstitutional.

Thomas v. Collins (1944)

Terminiello v. City of Chicago (1949)

Article: Thomas A. Bolan, “Freedom of Speech and the Terminiello Case”

Religious Freedom

In Arver (1918) the Court held that the First Amendment does not in itself protect conscientious objectors from conscription for military service. While Congress may exempt them from service, they have no constitutional right to be exempt. Similarly, in Hamilton (1934) the Court held that the amendment does not exempt pacifists from military training as a condition for attending a state university.

Arver v. United States (1918)

Hamilton v. Regents of the University of California (1934)

Article: Michael J. Malbin, “Conscription, the Constitution, and the Framers: An Historical Analysis”

Jehovah’s Witnesses Cases

During the 1930s, the Jehovah’s Witnesses undertook an unprecedented proselytizing campaign in the United States, prompting a spate of litigation on religious rights. The Court upheld the right of the Witnesses to proselytize through public speeches and fliers so long as they did not breach the peace. However, the Court struggled with whether Witnesses could be exempted from mandatory flag salutes in public schools. In Gobitis (1940), the Court ruled that the First Amendment did not exempt students from participating in flag salutes on religious ground. However, the ruling was overturned in Barnette (1943) only three years later.

Lovell v. Griffin (1938)

Schneider v. Irvington (1939)

Cantwell v. Connecticut (1940)

Minersville School District v. Gobitis (1940)

West Virginia Board of Education v. Barnette (1943)

Article: Hon. Jeffrey S. Sutton, “Barnette, Frankfurter, and Judicial Review”

The Establishment Clause

The Establishment Clause of the First Amendment was at issue in cases involving public support for church-related schools, as well as cases involving religious instruction in public schools. The rulings were deeply divisive at the time and precipitated continuing controversy over church-state relations.

Everson v. Board of Education (1948)

Cochran v. Louisiana State Board of Education (1930)

Illinois ex rel. McCollum v. Board of Education (1948)

Zorach v. Clauson (1952)

Some Racial Justice

Established in 1909, the National Association for the Advancement of Colored People was instrumental in bringing civil rights cases to the Supreme Court. The NAACP’s earliest legal victories came through challenges to state suffrage laws designed to prevent African Americans from voting. Although “grandfather clauses” favoring the suffrage rights of whites were held unconstitutional by the Supreme Court, these rulings did not prevent other and more sophisticated attempts to rig the ballot.

NAACP: 100 Years of History

The Grandfather Clause in Louisiana

Guinn v. United States (1915)

Lane v. Wilson (1939)

The White Primary

One of the most effective methods used to disenfranchise blacks was the so-called “white primary.” Arguing that political parties were private associations and therefore not bound by the Fourteenth and Fifteenth Amendments, the Democratic party in the South barred blacks from voting in its primaries. In Smith v. Allwright (1944) the Court overturned an earlier ruling, holding instead that political parties are public entities with respect to elections and therefore subject to the same constitutional constraints as the states.

Newberry v. United States (1921)

Grovey v. Townsend (1935)

United States v. Classic (1941)

Smith v. Allwright (1944)

Article: Michael J. Klarman, “The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking”

Chapter 19

World War II

The experiences of World War I and the Great Depression left the United States firmly isolationist. Congress passed a number of measures during the 1930s to ensure that the nation remained neutral in the impending European conflict. But events made neutrality impossible for the United States. When the Japanese bombed Pearl Harbor in 1941, the nation was once again plunged into global war.

World War II Timeline

Interactive Web Site: World War II in Western Europe

FDR’s Quarantine Speech (October 5, 1937)

Overview of the Pearl Harbor Attack, December 7, 1941

FDR’s Pearl Harbor Speech (December 8, 1941)

Major Pacific Battles

Waging Total War

In United States v. Curtiss-Wright Export Corporation (1936), the Supreme Court held that the president has the constitutional authority to act as the voice of the nation in foreign affairs. The opinion supported expansive foreign relations powers for the president, and Roosevelt used these powers to the hilt as World War II unfolded. After Congress declared war on Japan and Germany in 1941, the Court upheld domestic wartime controls passed by Congress as constitutional exercises of the war powers.

United States v. Curtiss-Wright Export Corporation (1936)

Yakus v. United States (1944)

Bowles v. Willingham (1944)

Steuart & Brothers v. Bowles (1944)

Internment of Japanese-Americans

The compulsory relocation of more than 100,000 Japanese Americans remains one of the most troubling aspects of twentieth-century constitutional history. Under Executive Order No. 9066, Americans of Japanese descent were rounded up and relocated to detention camps without hearing or charge as a preventive security measure. A series of cases challenged various aspects of the internment program. The Court unanimously upheld a curfew order in Hirabayashi v. United States (1943) but was bitterly divided on the constitutionality of the relocation order and on the detention of Japanese Americans in Korematsu (1944) and Endo (1944) cases.

Executive Order No. 9066 (February 19, 1942)

Film: Japanese Internment (1943 U.S. government-produced film defending the World War II internment of Japanese American citizens)

Hirabayashi v. United States (1943)

Korematsu v. United States (1944)

Ex parte Endo (1944)

“Japanese Relocation and Internment during World War II” (links to primary sources)

“Sites of Shame” (interactive website on internment camps)

Military Trial of Civilians

Immediately after the Pearl Harbor attack, the Governor of Hawaii suspended the writ of habeas corpus and imposed martial law pursuant to the Hawaiian Organic Act of 1900. For the first time since the Civil War, U.S. civilians came under military jurisdiction. In Duncan v. Kahanamoku (1946) the Court avoided the underlying constitutional issue of whether Congress could subject civilians to military justice outside a war zone and decided the case on narrow statutory grounds instead.

Maj. Gen. Thomas H. Green, “Martial Law in Hawaii, December 7, 1941—April 4, 1943”

Duncan v. Kahanamoku (1946)

Jurisdiction over Enemy Military Personnel

In Ex parte Quirin (1942) the Supreme Court ruled on whether enemy saboteurs captured in the United States could be tried by military commissions when the civil courts were open and available. The Court unanimously held that the president as commander in chief has authority to establish military commissions for the purpose of trying enemy saboteurs. It further held that enemy military personnel are not protected by the United States Constitution.

Ex parte Quirin (1942)

German Espionage and Sabotage Against the United States in World War II: George John Dasch and the Nazi Saboteurs (FBI Handout)

Report for Congress: Louis Fisher, Military Tribunals: The Quirin Precedent (March 26, 2002)

War Crimes Trials

After the surrender of Japan, the United States established military tribunals for the trial of alleged war criminals. The controversial trial and conviction of General Tomoyuki Yamashita for war crimes in the Philippines raised serious questions about the procedures and rules of evidence employed by the commission that tried him. The Court upheld the jurisdiction of the military to try Yamashita but declined to rule on the fairness of his trial on the ground that the proceedings of military commissions are not subject to judicial review. The Court also held that the war powers of the government do not automatically cease with the cessation of hostilities.

In re Yamashita (1948)

Film Footage: Trial of General Tomoyuki Yamashita (1945)

War Powers in Peacetime

The Yamashita ruling on the persistence of the war powers after the end of hostilities was cited by the Court in Woods v. Miller (1948) to uphold a 1947 act of Congress continuing wartime rent controls.

Woods v. Miller (1948)

Wartime Treason

World War II required the Court to revisit the treason standard enunciated by Chief Justice Marshall in the 1807 treason trial of Aaron Burr. Marshall held that a defendant must be proved to have committed an overt act against the United States in order to be found guilty of the crime of treason. In Cramer v. United States (1945) and Haupt v. United States (1947) the Court held that the overt act alleged must be underpinned by treasonous intent.

Cramer v. United States (1945)

Haupt v. United States (1947)

Chapter 20

The Cold War

After the cessation of hostilities, the wartime alliance of the Allied Powers collapsed when the Russians proceeded to set up puppet communist regimes in Eastern Europe. Tensions between the West and the Soviet Union rapidly escalated into a global military and ideological confrontation. The Cold War, as it came to be known, was in some ways more threatening than the hot wars of the past because both sides were armed with nuclear weapons capable of mass destruction.

Timeline of the Cold War:

Interactive Website: Cold War

The Marshall Plan:

Online Exhibition: The Fiftieth Anniversary of the Marshall Plan

North Atlantic Treaty

War Powers of the President Limited

The first major eruption of Cold War hostilities occurred when communist North Korea attacked the American-backed government of South Korea. The United Nations Security Council issued a Resolution on June 25, 1950, calling upon member states to commit peacekeeping forces to the region. President Harry S. Truman committed United States forces to the mission and appointed General Douglas MacArthur to command all Allied Forces in Korea. There was no formal declaration of war by Congress, and the military operations that followed technically took the form of an international police action. When a steelworkers’ strike threatened to impair war production, Truman issued an executive order seizing the steel mills. The Supreme Court declared the order unconstitutional on the ground that the president could not invoke his war powers in time of peace absent congressional authorization.

The Korean War

The Korean War and Its Origins (links to primary sources)

United Nations Security Council Resolution (June 25, 1950)

Youngstown Sheet & Tube Company v. Sawyer (1952)

The Truman Loyalty Order

The Cold War put the United States on the defensive globally and gave rise to domestic suspicions that communist forces were working from within to subvert and ultimately overthrow the government. Rumors of espionage and the infiltration of the government by Soviet agents and sympathizers fueled the fear of hidden enemies on the home front. President Truman issued a Loyalty Order in 1947 for the investigation of employees of the executive branch. The campaign to root out subversives that followed for a time assumed the dimensions of a political witch hunt; loyal Americans were harassed and dismissed on the basis of rumors and anonymous accusations. High-profile cases involving espionage helped inflame anticommunist hysteria well into the 1950s.

“Loyalty Order” Executive Order 9835 (March 21, 1947)

Interactive Website: The Alger Hiss Story

Interactive Website: The Rosenberg Trial

The VENONA Files (declassified Soviet diplomatic correspondence intercepted by the U.S. government and unencrypted)

The McCarran Act

The McCarran Internal Security Act required all communist and communist-front organizations to register with the attorney general and submit their membership lists and financial records. While it did not prohibit membership in such organizations, the law prohibited the promotion of dictatorial forms of government and barred members from working for the federal government. It was followed by the Immigration and Nationality Act, which threatened denationalization and deportation of naturalized citizens who had been members of totalitarian organizations before coming to the United States. It was in this context that Senator Joseph R. McCarthy of Wisconsin rose to national prominence for his ruthless pursuit of alleged communists.

McCarran Internal Security Act (1950)

Behind the Scenes: The McCarran Internal Security Act (links to primary sources)

Alien Registration Act (Smith Act, 1940)

McCarran-Walter Immigration and Nationality Act (1952)

Presidential Succession

The Presidential Succession Act made the Speaker of the House and then the President Pro Tempore of the Senate next in line of succession to the president and vice president.

Presidential Succession Act (July 18, 1947)

Twenty-Second Amendment

The Twenty-Second Amendment prohibited anyone from serving as president for more than two terms. It also provided that anyone serving as president for more than two years of another person’s term should not be eligible for election as president more than once. Although Truman was exempted from the amendment as the sitting president, the measure was regarded by many as implicitly critical of his administration.

Twenty-Second Amendment (Annotated)

Truman’s Court Appointments

President Truman altered the balance of power on the Court with his appointments. Justices Reed, Jackson, and Frankfurter joined his conservative appointees on many issues, leaving Black and Douglas as the only consistently liberal justices on the Court.

Harold H. Burton

Fred M. Vinson

Tom C. Clark

Sherman Minton

Civil Liberties under Siege

The first major challenge to postwar anticommunist legislation came in American Communications Association v. Douds (1950). At issue was the constitutionality of a provision in the Taft-Hartley Act of 1947 requiring officers of labor unions to file affidavits disclaiming membership in the Communist Party and to disavow support for or belief in organizations advocating the violent overthrow of government. The Court upheld the affidavit requirement but declared the nonbelief oath unconstitutional for penalizing individuals for their political convictions.

American Communications Association v. Douds (1950)

Smith Act Prosecutions

The Smith Act imposed sweeping restrictions on First Amendment rights, making it a criminal offense “to knowingly or willingly advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence.” When the Truman administration used the act to indict eleven leading members of the American Communist Party, the defendants challenged the constitutionality of the measure under the First Amendment. The Court upheld the law by a 6–2 vote, but without agreement as to why it was constitutional.

Dennis v. United States (1951)

State Loyalty Programs

Taking their cue from the federal government, the states passed security measures involving loyalty oaths and noncommunist affidavits designed to exclude alleged subversives from government employment. Laws requiring individuals to disavow belief in the right to overthrow government by force were upheld by the Court as reasonable exercises of state police power.

Gerende v. Board of Supervisors (1951)

Garner v. Board of Public Works of Los Angeles (1952)

Adler v. Board of Education (1952)

Wieman v. Updegraff (1952)

The Federal Loyalty Program

In 1951, President Truman issued Executive Order 10241, which authorized the removal of government employees upon a finding of reasonable doubt as to their loyalty. A standard ordinarily used to protect the accused was now used to condemn them. The Supreme Court upheld the constitutionality of the order and of the loyalty boards employed to enforce it. The Court essentially took the position that no one has a constitutional right to a government job.

Executive Order 10241 (April 28, 1951)

Testimony of Paul Robeson before the House Committee on Un-American Activities (June 12, 1956)

Newsreel: Hollywood “Red” Probe, HUAC Hearings Begin 1947/10/20

Joint Anti-Fascist Refugee Committee v. McGrath (1951)

Racial Progress in the Courts

While civil liberties suffered significant setbacks during the Cold War, civil rights made some historic strides forward. The NAACP scored a number of signal victories in the Supreme Court. Racially restrictive covenants on property were held unenforceable under the Equal Protection Clause of the Fourteenth Amendment, and racial segregation in interstate transportation was held to interfere with the uniformity of interstate commerce.

Shelley v. Kraemer (1948)

Hurd v. Hodge (1948)

Morgan v. Virginia (1946)

Bob-Lo Excursion Company v. Michigan (1948)

Henderson v. United States (1950)

Enforcing the “Equal” in Separate but Equal

The Vinson Court made racial segregation all but impossible in a series of cases involving public universities and professional schools. Without overturning the separate but equal doctrine, the Court held that the doctrine required the states to admit black students to existing academic programs or else establish new facilities and programs to accommodate them. It would no longer be acceptable for public institutions to deny African Americans admission simply because the schools did not have separate facilities for them. The price of continuing segregation in higher education now became prohibitively high, putting the states under heavy pressure to desegregate their universities and professional schools.

Missouri ex rel. Gaines v. Canada (1938)

Sipuel v. University of Oklahoma (1948)

Fisher v. Hurst (1948)

Sweatt v. Painter (1950)

McLaurin v. Oklahoma State Regents (1950)

Eisenhower and the Return of Reason

Dwight D. Eisenhower was elected president in 1953, the first Republican to hold that office in twenty years. Senator McCarthy’s hunt for Communists within the federal government continued unabated until he finally discredited himself by accusing the U.S. Army of harboring subversives. The subsequent Senate hearings were televised and for the first time the nation witnessed his bullying tactics. The spectacle cost McCarthy his credibility, and support for his anticommunist witch hunts thereafter vanished almost as quickly as it had begun.

Dwight D. Eisenhower (links to biographical information and primary sources)

Film: Edward R. Murrow Report on Senator Joseph McCarthy

The Bricker Amendment

The United Nations was established after World War II for the purpose of promoting global peace, security, and development. When the United States joined the organization and subscribed to its charter, concern arose over the charter’s implications for domestic law. Article 55, for example, obligated member states to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” Judicial decisions invalidating state laws on the ground that they violated Article 55 caused a political reaction. A constitutional amendment limiting the domestic effect of treaties was proposed, but fell one vote short of the required two-thirds majority in the Senate.

United Nations Charter (1945)

Oyama v. California (1948)

Fujii v. State (1952)

Chapter 21

Eisenhower’s Court Appointments

President Eisenhower’s appointment of Earl Warren as chief justice of the United States was one of the most enduring legacies of his presidency. A judicial activist of great political skill, Warren brought greater cohesion and direction to the Court than it had experienced during the Vinson years. He led the Court and indeed the nation through historic changes in racial, political, and social dynamics during times of deep unrest.

Earl Warren

Oral History Interview with Earl Warren (Transcript)

John Marshall Harlan

William J. Brennan

Video: Interview with William J. Brennan

Charles E. Whittaker

Potter Stewart

Desegregating Public Education

The work of the Vinson Court prepared the way for the total dismantling of racial segregation. When the Court struck down the separate but equal doctrine in Brown, Chief Justice Warren made sure that the justices spoke unanimously in order to make clear that no other outcome was possible. The opinion of the Court spoke directly to the nation; it was brief, readable, and easily understood. Recognizing that the nation needed time to dismantle segregated school systems, the lower federal courts were directed to implement the decision with “all deliberate speed.” When southern states resisted implementation of the decision, President Eisenhower sent federal troops in to enforce desegregation. The Court, for its part, spoke forcefully in dealing with resistance to a desegregation order. “The time has not come when an order of a Federal Court must be whittled away, watered down, or shamefully withdrawn in the face of violent and unlawful acts of individual citizens.”

Brown v. Board of Education of Topeka I (1954)

Brown v. Board of Education of Topeka II (1954)

Bolling v. Sharpe (1954)

Cooper v. Aaron (1958)

Anticommunism and the Court

The Warren Court brought some of the worst abuses of the House Un-American Activities Committee to a stop. In the 1955 Quinn and Emspak cases, the Court held that witnesses before the committee had a right to invoke the Fifth Amendment privilege against self-incrimination, frustrating the bullying tactics of investigators. The Court went on to overturn statutes allowing states to dismiss employees who invoked the Fifth Amendment as violations of the Due Process Clause of the Fourteenth Amendment. The biggest blow to HUAC came when the Court ruled in Watkins (1957) that the investigative powers of Congress extend only to its legislative functions, thereby curtailing the fishing expeditions with which HUAC had ruined countless lives.

Quinn v. United States (1955)

Emspak v. United States (1955)

Slochower v. Board of Education (1956)

Ullmann v. United States (1956)

United States v. Rumely (1953)

Watkins v. United States (1957)

Sweezey v. New Hampshire (1957)

The Smith Act and the Courts

In Pennsylvania v. Nelson (1947) the Warren Court ended the prosecution of Communist Party members under state sedition laws. Individuals who had been prosecuted under the Smith Act by the federal government were frequently also prosecuted by state authorities under state sedition laws. Sequential state and federal prosecutions for the same offense are constitutional under United States v. Lanza (1922), but in Nelson the Court held that federal sedition law preempts state sedition law.

United States v. Lanza (1922)

Pennsylvania v. Nelson (1957)

Eviscerating the Smith Act

In Yates v. United States (1957) the Court all but overturned the Smith Act. Applying a very narrow interpretation, the Court held that the statute barred advocating or teaching the violent overthrow of government only with respect to concrete action and not as an abstract principle. In addition, the Court held that the organizing section of the law applied only to the initial formation of the postwar Communist Party in 1945. Because of the three-year statute of limitations on criminal prosecutions, it became impossible to prosecute defendants under the provision.

Yates v. United States (1957)

Scales v. United States (1961)

Loyalty Programs and Due Process

The Warren Court issued a series of rulings extending due process rights that the Vinson Court had denied to federal employees accused of subversion. Government departments were held accountable to their own internal rules, and the accused were given opportunities to refute the charges against them. No longer could they be discharged on the basis of unproved and anonymous accusations.


Cole v. Young (1956)

Service v. Dulles (1957)

Vitarelli v. Seaton (1959)

Kent v. Dulles (1958)

Greene v. McElroy (1959)

Military Courts and Civilians

The expansion of United States military bases abroad in the wake of World War II raised questions about the constitutional rights of personnel deployed abroad and the rights of their family members. The Court held that military personnel do not have the same rights as civilians. Their rights are governed by military law and by the status of forces agreements in effect between the United States and the host country. But neither treaties nor status of forces agreements can deprive civilians with United States citizenship of their constitutional rights with respect to criminal proceedings on overseas bases.

United States ex rel. Toth v. Quarles (1955)

Kinsella v. Kreuger (1956)

Reid v. Covert (1956)

Wilson v. Girard (1957)

Harmon v. Brucker (1958)

Fair Trial and Full Disclosure

In Jencks v. United States (1957) the Warren Court held that defendants have a Sixth Amendment right to examine the pretrial statements made by government witnesses against them.

Jencks v. United States (1957)

Free Speech and Political Advocacy

In Brandenburg v. Ohio (1969) the Court overturned the conviction of a Ku Klux Klan member for a speech he delivered at a cross-burning ceremony. The Court affirmed the clear and present danger standard, ruling that the First Amendment protects the right to advocate freely in the presence of a hostile audience.

Brandenburg v. Ohio (1969)

Dennis v. United States (1951)

Chapter 22

New Court Appointments

Presidents Kennedy and Johnson appointed loyal liberal Democrats to the Court, jurists who shared Chief Justice Warren’s vision of the Court as an activist institution at the vanguard of social reform. Among Johnson’s nominees was Thurgood Marshall, longtime special counsel to the NAACP and a distinguished advocate before the Court in key civil rights cases. Marshall became the first African American justice to serve on the Court.

Byron R. White

Arthur J. Goldberg

Interview of Arthur J. Goldberg (Transcript)

Abe Fortas

Interview of Abe Fortas (Transcript)

Thurgood Marshall

Interactive Website: Thurgood Marshall before the Court

Video: Interview of Thurgood Marshall

The Liberals Take Charge

The strength of the liberal voting bloc was demonstrated in a series of decisions upholding the due process rights of alleged subversives. Fishing expeditions masquerading as legislative investigations were held unconstitutional on the ground that they served no legitimate legislative purpose. That HUAC had been thoroughly discredited by 1965 can be attributed in large measure to the Court’s exposure of its worst abuses. The Court similarly dealt a fatal blow to political witch hunts at the state level.

Shelton v. Tucker (1960)

Russell v. United States (1962)

Gibson v. Florida Legislative Investigation Committee (1963)

DeGregory v. Attorney General of New Hampshire (1966)

Gojack v. United States (1966)               

Twenty-Third Amendment

The Twenty-Third Amendment gives the inhabitants of the District of Columbia the right to vote in presidential elections. It authorizes the District to appoint the number of presidential electors to which it would be entitled if it were a state. The number of electors cannot exceed the number of electoral votes cast by the least populous state.

Twenty-Third Amendment (Annotated)

Revolution in Civil Rights

During the 1960s, civil rights activists threw themselves into campaigns for racial justice with renewed vigor. Sit-ins, freedom marches, and demonstrations were held throughout the nation under the charismatic leadership of such activists as the Rev. Martin Luther King, Jr. The Warren Court supported the movement by desegregating public facilities and finally striking down antimiscegenation laws as unconstitutional. It also protected the right of civil rights demonstrators to engage in peaceful protest.

Online Exhibition: The Civil Rights Era

Online Exhibition: Voices of Civil Rights

Civil Rights Resource Guide

Martin Luther King’s “I Have a Dream” Speech (Text)

Loving v. Virginia (1967)

Video: ABC News Report on Loving Case (1967)

Garner v. Louisiana (1961)

Peterson v. City of Greenville (1963)

Edwards v. South Carolina (1963)

Twenty-Fourth Amendment

The Twenty-Fourth Amendment prohibits the use of poll taxes as a voting qualification in federal elections. It also authorizes Congress to enforce the prohibition with appropriate legislation. In Harper v. Virginia Board of Elections (1966), the Supreme Court extended the ban on poll taxes to state elections as well.

Twenty-Fourth Amendment (Annotated)

Harper v. Virginia Board of Elections (1966)

Breedlove v. Suttles (1937)

Congressional Action on Civil Rights

Congress passed a series of laws bringing to bear the resources of the federal government to protect civil rights. A Commission on Civil Rights was established with authority to investigate racial discrimination in suffrage, and the Justice Department’s Civil Rights Division became more active in prosecuting offenses. The Civil Rights Act of 1964 prohibited both public and private racial discrimination, along with discrimination in public accommodations. It established the Equal Employment Opportunity Commission to deal with compliance in employment practices, and imposed tight controls on the use of literacy tests in elections.

Civil Rights Act of 1957 (primary sources)

Civil Rights Act of 1960

Statement by the President upon Signing the Civil Rights Act of 1960 (May 6, 1960)

Civil Rights Act of 1964

Video: President Lyndon B. Johnson Signs Civil Rights Act of 1964

The Court and Title II of the 1964 Civil Rights Act

Predictably, the constitutionality of the public accommodations provision of the 1964 Civil Rights act was challenged in a series of cases before the Supreme Court. The Court upheld the provision as a legitimate exercise of Congress’s commerce power. The Court would later use the public accommodations provision to overturn state trespass convictions in sit-in cases.

Heart of Atlanta Motel v. United States (1964)

Katzenbach v. McClung (1964)

Hamm v. City of Rock Hill (1964)

Voting Rights Act of 1965

The Voting Rights Act of 1965 suspended literacy tests in any state where the attorney general found that more than 50% of persons of voting age had not registered or voted in the last presidential election. Federal examiners would be appointed to supervise elections in the offending states, and voting laws could not be changed without the approval of the attorney general. All provisions of the law were upheld in a series of challenges during the 1960s.

Louisiana Literacy Test

Links to Literacy Tests Administered in Alabama, Louisiana, Mississippi, and South Carolina

Voting Rights Act of 1965

Video: Lyndon Johnson Remarks on the Signing of the Voting Rights Act of 1965

South Carolina v. Katzenbach (1966)

Katzenbach v. Morgan (1966)

Reitman v. Mulkey (1967)

Civil Rights Act of 1968

The assassination of Martin Luther King, Jr., set the stage for further civil rights legislation. The 1968 Civil Rights act prohibited racial and religious discrimination in the sale or rental of housing in dwellings with five units or more. The measure was upheld under the Thirteenth Amendment as a legitimate exercise of Congress’s power to eliminate all incidents of slavery in the United States. According to the Court, the denial of housing to people on the basis of race or religion denoted servile status incompatible with the amendment.

Video: CBS News Report on Assassination of Martin Luther King (1968)

Civil Rights Act of 1968

Video: President Lyndon B. Johnson’s Remarks on Signing the Civil Rights Act (April 11, 1968)

Jones v. Alfred H. Mayer Company (1968)

Immigration Act of 1965

The Immigration and Nationality Act of 1965 abolished the quota system that had governed immigration policy since 1924, replacing it with a system based on immigrants’ skills and family ties with citizens or residents of the United States.

Immigration and Nationality Act of 1965

President Lyndon B. Johnson’s Remarks at the Signing of the Immigration Bill, Liberty Island, New York (October 3, 1965)

Hernandez v. Texas (1954)

Chapter 23

Equalizing the Ballot

The gerrymandering of electoral districts to favor particular political parties or candidates was a practice dating back to the English origins of American government. But the Supreme Court was reluctant to become involved in challenges to districting schemes. Most notably, the Court declined to hear a redistricting case in Colegrove v. Green (1946) on the ground that the issues involved were essentially political and therefore nonjusticiable. But the Warren Court created an exception to Colegrove in Gomillion v. Lightfoot (1960), where racial gerrymandering was involved.

Colegrove v. Green (1946)

Gomillion v. Lightfoot (1960)

“Baffling Boundaries: The Politics of Gerrymandering”

Baker v. Carr

Two years later, the Court overturned Colegrove completely in Baker v. Carr (1962), a case involving demands for reapportionment of electoral districts in Tennessee to reflect population changes. Speaking for the majority, Justice Brennan wrote: “The mere fact that the suit seeks protection of a political right does not mean it presents a political question.” The case triggered a series of challenges to state apportionment schemes and involved the Court directly in reshaping the political landscape of the nation.

Baker v. Carr (1962)

Wesberry v. Sanders (1964)

Gray v. Sanders (1963)

Reynolds v. Sims (1964)

Twenty-Fifth Amendment

Ratified in 1967, the Twenty-Fifth Amendment provides for the appointment of an acting president in the event that the sitting president cannot perform his official functions. It also provides for filling vacancies in the vice presidency.

Twenty-Fifth Amendment (Annotated)

School Prayer and the Court

The Warren Court took up the issue of religion in public education in a series of Establishment Clause cases. The Court ruled that Bible reading and voluntary prayer programs in public schools violate the separation of church and state. It also struck down a state law prohibiting the teaching of evolution in public schools as an indirect endorsement of religious beliefs.

Engel v. Vitale (1962)

Abington School District v. Schempp (1963)& Murray v. Curlett (1963)

Epperson v. Arkansas (1968)

Public Funding of Church-Related Schools

The Court did not preclude all relationships between the government and religious institutions. In Board of Education v. Allen (1968), the Court upheld a New York law requiring local school boards to provide free textbooks to children attending private and parochial schools on the ground that the law benefited the children and not the schools.

Board of Education v. Allen (1968)

Sunday Closing Laws

The Court took a pragmatic approach to church-state relations in the Sunday Closing Cases (1961). At issue was the constitutionality of state laws requiring businesses to close on Sunday. Although such legislation had religious origins, the Court ruled that setting aside Sunday as a day of rest had acquired a secular significance that supported the constitutionality of the laws.

Sunday Closing Cases (1961)

Libel and the First Amendment

The Warren Court expanded press freedom under the First Amendment by ruling that the legal protections against libel enjoyed by private persons does not extend to public figures. With respect to the latter, the publication must not only be false but published with knowledge that it is false or with reckless disregard for the truth. In a series of cases, the Court provided guidelines for distinguishing public from private persons.

New York Times v. Sullivan (1964)

Garrison v. Louisiana (1964)

Rosenblatt v. Baer (1966)

Curtis Publishing Company v. Butts (1967)

Beauharnais v. Illinois(1952)

Obscenity and the First Amendment

For all the focus and clarity it brought to other First Amendment issues, the Warren Court seemed confounded by obscenity cases. In formulating guidelines to distinguish obscene materials from protected speech, the Court became entangled in a web of subjective issues involving prurience, community standards, and socially redeeming value. In Roth v. United States (1957) Justice Douglas, who believed that the First Amendment protected all forms of speech, criticized the Court’s approach as capricious and destructive of free expression.

Butler v. Michigan (1957)

Roth v. United States (1957)

Alberts v. California (1957)

Regina v. Hicklin (1868)

Manual Enterprises v. Day (1962)

“John Cleland’s Memoirs” v. Massachusetts (1966)

Ginzburg v. United States (1966)

Mishkin v. New York (1966)

Ginsberg v. New York (1968)

Stanley v. Georgia (1969)

Interstate Circuit v. Dallas (1968)

Privacy and the Constitution

In Griswold v. Connecticut (1965) the Court struck down a nineteenth-century Connecticut law banning contraception on the ground that it violated the individual’s constitutional right to privacy. No such right existed at common law, nor is it mentioned in the Constitution or Bill of Rights. However, Justice Douglas, speaking for the majority, held that the right to privacy can be inferred from the “zones of privacy” protected by the First, Third, Fourth, and Fifth Amendments.

Griswold v. Connecticut (1965)

Chapter 24

The Exclusionary Rule

Some of the most far-reaching decisions of the Warren Court dealt with criminal due process and the rights of the accused during the investigation and trial. The first breakthrough occurred in Mapp v. Ohio (1961), when the Court extended the Fourth Amendment guarantees against unreasonable searches or seizures against the states.

Weeks v. United States (1914)

Wolf v. Colorado (1949)

Rochin v. California (1952)

Mapp v. Ohio (1961)

News Article: Alexander Wohl, “Mapp v. Ohio Turns Fifty”

Cruel and Unusual Punishments

Another major achievement of the Warren Court was the extension of the Punishments Clause of the Eighth Amendment to the states in Robinson v. California (1962). The decision incorporated the federal guarantee into the Due Process Clause of the Fourteenth Amendment.

Louisiana ex rel. Francis v. Resweber (1947)

Article: William Wiecek, “Felix Frankfurter, Incorporation and the Willie Francis Case”

Robinson v. California (1962)

The Right to Counsel

While the Court recognized a right to counsel in Powell v. Alabama (1932), the right was limited in Betts v. Brady (1942) to defendants in capital cases. The Court overturned Betts in Gideon v. Wainwright (1963), ruling that indigent defendants in felony cases are entitled to court-appointed counsel because without adequate representation they cannot be assured a fair trial.

Powell v. Alabama (1932)

Betts v. Brady (1942)

Johnson v. Zerbst (1938)

Uveges v. Pennsylvania (1948)

Carnley v. Cochran (1962)

Gideon v. Wainwright (1963)

“Fifty Years Later: The Legacy of Gideon v. Wainwright”

Douglas v. California (1963)

Police Practices and the Right to Counsel

In Escobedo v. Illinois (1962) the Court held that the right to counsel arises not just at trial but during police investigation. Speaking for the 5–4 majority, Justice Goldberg held that the right is triggered when the investigation “shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession.” Denial of access to counsel renders any incriminating statements made by the suspect during interrogation inadmissible against him.

Escobedo v. Illinois (1962)

Self-Incrimination and the Court

In Twining v. New Jersey (1908) the Court held that the Fourteenth Amendment did not extend the Fifth Amendment guarantee against compulsory self-incrimination to the states. The Warren Court narrowly overturned this ruling in Malloy v. Hogan (1964) by a 5–4 vote.

Twining v. New Jersey (1908)

Adamson v. California (1947)

Malloy v. Hogan (1964)

Miranda v. Arizona

Miranda v. Arizona (1966) marked the culmination of the Warren Court’s jurisprudence with respect to criminal due process. In Miranda, the Court held that persons taken into police custody must be informed “in clear and unequivocal terms” of their right to remain silent, that they have a right to counsel, and that counsel will be provided if requested. The case caused much controversy punctuated by charges that the Court had tilted the scales of justice in favor of the criminal classes and against the interests of the law-abiding public.

Miranda v. Arizona (1966)

Video: Interview with Ret. Capt. Carroll Cooley, Arresting Officer of Ernesto Miranda

The Right of Confrontation

The Court began incorporating the guarantees of the Sixth Amendment into the Fourteenth in Powell v. Alabama (1932) and In re Oliver (1948). The Warren Court continued this process by incorporating the right to confront accusing witnesses in open court into the Fourteenth Amendment.

In re Oliver (1948)

Pointer v. Texas (1965)

Right to Compulsory Process

The Sixth Amendment right to compulsory process was incorporated against the states in Washington v. Texas (1967).

Washington v. Texas (1967)

Impartial Trial Guarantee

The Sixth Amendment right to an impartial trial was incorporated against the states in Parker v. Gladden (1966).

Parker v. Gladden (1966)

Right to a Speedy Trial

The Sixth Amendment right to a speedy trial was incorporated against the states in Klopfer v. North Carolina (1967).

Klopfer v. North Carolina (1967)

Jury Trial

The right to jury trial was the last of the Sixth Amendment guarantees incorporated into the Fourteenth Amendment. The Warren Court ruled that due process of law entitles defendants to a fair trial, and that jury trial is best suited to provide it.

Maxwell v. Dow (1900)

Duncan v. Louisiana (1968)

Double Jeopardy

The Fifth Amendment guarantee against double jeopardy was the last Bill of Rights protection incorporated against the states by the Warren Court. In Benton v. Maryland (1969), the Court overturned Palko v. Connecticut (1937) and barred the states from prosecuting defendants more than once for the same offense.

Palko v. Connecticut (1937)

Benton v. Maryland (1969)

Federalism and Double Jeopardy

Federalism imposes limits on the protection afforded by the rule against double jeopardy. Both the state and federal governments, as separate sovereigns, have jurisdiction to prosecute violations of their laws regardless of prosecutions for the same offense by the other sovereign. The rule only precludes more than one prosecution for the same offense by the same sovereign.

United States v. Lanza (1922)

Bartkus v. Illinois (1959)

Chapter 25

Court Appointments

Richard Nixon was elected president in part on his pledge to appoint law-and-order justices to the Supreme Court who would halt the judicial activism of the Warren era. Chief Justice Warren E. Burger and his other appointees were moderately conservative, but, with the exception of Justice Rehnquist, flexible and pragmatic on most public issues. Although they chipped away at some of the rulings of the Warren Court, its key decisions were not overturned. Despite the polarizing politics of the 1970s, the Burger Court in retrospect turned out to be a remarkably stable and principled institution.

Warren E. Burger

Harry A. Blackmun

Lewis F. Powell, Jr.

William H. Rehnquist

Vietnam and the War Powers

Since 1801, when President Jefferson committed naval forces to the Barbary War, the president has been able to wage de facto war as commander-in-chief without a formal declaration of war by Congress. During the early 1960s, President Kennedy sent American troops to South Vietnam to serve as military advisers against Communist insurgents. And when North Vietnam attacked American naval vessels in the Gulf of Tonkin, President Johnson secured a resolution from Congress authorizing him to repel attacks against the armed forces of the United States. Johnson treated the resolution as a de facto declaration of war and committed over half a million troops to the Vietnam conflict. Constitutional challenges to American involvement were brought before the Supreme Court, but the Court declined to consider the issue on the ground that it raised political questions beyond the jurisdiction of the Court.

Durand v. Hollins (1860)

Gulf of Tonkin Resolution

Text: President Nixon’s Address to the Nation on the Vietnam War (November 3, 1969)

Video: President Nixon’s Address to the Nation on the Vietnam War (November 3, 1969)

Massachusetts v. Laird (1970)

Holtzman v. Schlesinger (1973)

Restriction of Symbolic Speech

The Military Selective Service Act of 1967, which subjected men between the ages of nineteen and thirty-five to conscription, encountered widespread opposition. Thousands of young men publicly burned their draft cards to demonstrate symbolically their opposition to American involvement in the Vietnam conflict. Since destroying draft cards was a federal offense, the Court had to decide whether symbolic speech under the First Amendment trumped the authority of Congress to enforce conscription. In United States v. O’Brien (1968) the Court ruled that the burning of draft cards is not a form of protected symbolic speech, because the government has a substantial interest in maintaining an orderly and efficient draft.

Video: Newsreel, Anti-War March (1967)

United States v. O’Brien (1968)

Hart v. United States (1968)

Holmes v. United States (1968)

War Powers Act

When the Vietnam conflict ended in 1973, Congress passed the War Powers Act in an attempt to prevent future de facto wars. The act limits the circumstances under which the president can commit the armed forces to combat, and places time limits on overseas military interventions absent congressional authorization. From a practical standpoint, the War Powers Act is unenforceable, because it would be politically impossible for Congress to withhold support once American forces are committed to combat. Nor would the Court be likely to rule on the constitutionality of a statute that clearly involves a political question.                                                

War Powers Act

Guide to War Powers Resolution

The Pentagon Papers           

One of the nation’s most important press freedom cases arose from the public disclosure of materials that had been classified as top secret by the Pentagon. The materials, commonly referred to as the Pentagon Papers, were part of a study commissioned by Secretary of Defense Robert McNamara on the history of United States policy in Indochina. A researcher who had worked on the study leaked some of the materials to the press. When the Justice Department secured a temporary injunction against the New York Times barring publication of the material, the Supreme Court ruled against the government on the ground that it had failed to meet the burden of proof needed to justify restraint on publication.

The Pentagon Papers (links to full text)

The Pentagon Papers: Secrets, Lies, and Audiotapes (Links to Audio Files and Briefs in the Pentagon Papers Case)

Essay: Jordan Moran, “The First Domino: Nixon & the Pentagon Papers” (with links to audio files)

New York Times v. United States (1971)

Watergate and Executive Privilege

In the wake of a break-in at the National Democratic Committee’s headquarters during the 1972 election, the Senate undertook an investigation into potential White House involvement. A Select Committee was appointed to oversee the investigation, as well as a special prosecutor to deal with prosecutions resulting from the investigation. The investigation produced a political standoff when President Nixon refused to turn over audio tapes of conversations in the Oval Office. Nixon claimed that the tapes were protected by executive privilege and that the separation of powers doctrine barred any branch of government from dictating to another branch. The case finally reached Supreme Court, which recognized for the first time that a qualified executive privilege does indeed exist. However, the privilege could not be invoked to frustrate criminal proceedings already underway in the courts. The Court did not rule on whether the privilege could be exercised to frustrate congressional investigations. In any case, the president, already facing impeachment for obstructing the investigation, turned over the tapes to the special prosecutor, and the contents forced his resignation.

The Watergate Story: Timeline

Select Committee on Presidential Campaign Activities (The Watergate Committee)

Nixon: Raw Watergate Tape: “Smoking Gun” Section (audio and transcript)

Articles of Impeachment of President Nixon

Article: Carroll Kilpatrick, “Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit” (Washington Post, October 21, 1973)

United States v. Nixon (1974)

Video: President Nixon’s Resignation Address (August 8, 1974)

Text: President Nixon’s Resignation Address (August 8, 1974)

Chapter 26

The Burger Court and the First Amendment

The rise of mass media in the United States has presented challenges to the First Amendment rights of private individuals, the news media, and advertisers. The Burger Court’s libertarian approach to these cases helped shape the information society in which we live today.

Article: Thomas I. Emerson, “First Amendment Doctrine and the Burger Court”

Article: Geoffrey R. Stone, “The Burger Court and the Political Process: Whose First Amendment?”

Libel and Freedom of the Press

The Burger Court narrowed the public figure exception in libel suits. An individual’s newsworthiness is not in itself sufficient to support the exception. Only persons who engage in public controversy or attempt to influence public policy bear a higher burden of proof in libel cases.

Gertz v. Robert Welch, Inc. (1974)

Time Inc. v. Firestone (1976)

Commercial Speech Protected

The Court accorded commercial speech protection under the First Amendment, ruling that restrictions on advertising must be reasonably related to protecting the public interest. It also held that advertisements concerning public issues and political campaigns enjoy a higher degree of protection than advertisements for commercial purposes. The Court struck down state legislation that impinged on press freedom, ruling that the press could publish any information that was already on the public record, regardless of whether the plaintiff’s reputation suffered injury as a result.

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976)

Metromedia v. San Diego (1981)

Cox Broadcasting Corporation v. Cohn (1975)

Smith v. Daily Mail Publishing Co. (1979)

Protection of Political Speech

In Buckley v. Valeo (1976) the Supreme Court considered whether and to what extent the federal government can limit donations to political campaigns. The Court upheld restrictions on political contributions but ruled that limits on spending by the candidates themselves are unconstitutional under the First Amendment.

The Federal Election Campaign Laws: A Short History

Buckley v. Valeo (1976)

Press Freedom and Sixth Amendment Rights

In a series of cases involving media access to judicial proceedings, the Supreme Court held that the press does not have an absolute right of access. Where press coverage would deny the accused a fair trial, judges can prohibit reporters from publishing prejudicial information. Similarly, pretrial hearings can be closed to the public in order to protect the defendant’s Sixth Amendment right to a fair trial. The trial itself must be open to the public absent a compelling public interest in closure. However, the press itself has no special First Amendment right to cover judicial proceedings.

Estes v. Texas (1965)

Sheppard v. Maxwell (1966)

Nebraska Press Association v. Stuart (1976)

Gannett v. DePasquale (1979)

Richmond Newspapers v. Virginia (1980)

Confidentiality and the Press

The Burger Court refused to afford the press constitutional protection not available to ordinary citizens. It upheld the power of the judiciary to compel journalists to identify their confidential sources, and held that the offices of news media are subject to search in the course of criminal investigations.

Branzburg v. Hayes (1972)

Zurcher v. Stanford Daily (1978)

Herbert v. Lando (1979)

Deeper into the Obscenity Bog        

The Burger Court abandoned the national obscenity standards formulated by the Warren Court, adopting instead a decentralized approach based on local community sensibilities. The upshot was that what qualified as constitutionally protected speech in one state might be prohibited in others.

Miller v. California (1973)

Hamling v. United States (1974)

Splawn v. California (1977)

Separation of Church and State

Assuming a stance of “benevolent neutrality” on church-state issues, the Burger Court upheld the tax-exempt status of church property against Establishment Clause challenges, and expanded the protection afforded by the Free Exercise Clause. The Court exempted Amish children from a compulsory public education statute, and barred the prosecution of individuals for obscuring the state motto on their license plates for religious reasons. The Court attempted to steer a neutral middle course between the First Amendment rights of individuals and the power of the states to legislate the public interest.

Walz v. Tax Commission (1970)

Wisconsin v. Yoder (1972)

Reynolds v. United States (1878)

Wooley v. Maynard (1977)

Generally Applicable Laws Doctrine

The Court took the position that the First Amendment protects all religious beliefs but not all religious practices. Claiming that a law interferes with one’s religious practices does not automatically exempt a claimant from generally applicable laws. However, laws cannot be enacted that target the practices of specific religious groups. All prohibitions must be general and not primarily applicable to the practices of any particular group.

Employment Division, Department of Human Services of Oregon v. Smith (1990)

Sherbert v. Verner (1963)

Religious Freedom Restoration Act (1993)

Church of the LukumiBabalu Aye v. City of Hialeah (1993)

City of Boerne, Texas v. Flores (1997)

Weakening the Separation of Church and State

Whether schools operated by religious institutions are eligible for public subsidies was one of the most divisive issues before the Burger Court. In Lemon v. Kurtzman (1971), the Court formulated a test for determining the constitutionality of public assistance to church-related school programs: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” The elements of the Lemon Test have proven subjective in application, leading to unpredictable results in particular cases.

Lemon v. Kurtzman (1971)

Tilton v. Richardson (1971)

Roemer v. Maryland Public Works Board (1976)

Committee for Public Education v. Nyquist (1973)

Meek v. Pittenger (1975)

Wolman v. Walter (1977)

Committee for Public Education v. Regan (1980)

Mueller v. Allen (1983)

Agostini v. Felton (1997)

Zelman v. Simmons-Harris (2002)

Frothingham v. Mellon (1923)

Flast v. Cohen (1968)

Chapter 27

Civil Rights and Affirmative Action

Although the Court’s ruling in Brown called for desegregation with “all deliberate speed,” change came slowly. Implementing integration was one of the most pressing issues before the Burger Court. But once the legal foundations of segregation crumbled, broader questions about racial and gender equality surfaced, raising issues that the Court would grapple with well into the twenty-first century.

Timelines of Supreme Court Desegregation, Affirmative Action, and Voting Rights Cases

Timeline of Major Supreme Court Decisions on Women’s Rights

Online Exhibition: NAACP: A Century in the Fight for Freedom, 1909-2009

School Busing

Conceding that the “all deliberate speed” formula for desegregation had failed, the Court in 1969 declared that dual school systems had to be terminated immediately. The methods adopted to achieve this goal generated heated controversy. Among the most controversial were race-conscious school assignments and busing programs for desegregating formerly segregated school districts. Both were upheld as constitutional for school districts created by de jure segregation. But such extraordinary remedial measures were rejected for de facto segregation resulting from demographic patterns unrelated to official segregation policy.

Green v. County Board of New Kent County (1968)

Alexander v. Holmes County Board of Education (1969)

Swann v. Charlotte-Mecklenburg Board of Education (1971)

Keyes v. School District No. 1, Denver, Colorado (1973)

Milliken v. Bradley (1974)

Dayton Board of Education v. Brinkman (1977)

Columbus Board of Education v. Penick (1979)

Affirmative Action

Preferential programs to bring minorities into the mainstream of American life were adopted as a counterpart to the integration of the public school systems. Title VII of the 1964 Civil Rights Act prohibited job discrimination based on race. In a series of cases, the Court interpreted Title VII expansively in order to facilitate the entry of qualified minority employees into the labor force through preferential hiring programs. The Court struck down qualifying tests not deemed fair and relevant to the skills required for the job.

Civil Rights Act of 1964 (Title VII)

Griggs v. Duke Power Company (1971)

Washington v. Davis (1976)

Ricci v. DeStefano (2009)

Racial Quotas and the Court

In Regents of the University of California v. Bakke (1978), a sharply divided Court rejected the use of racial quotas by public universities in preferential admissions programs. The majority distinguished between the quotas upheld in desegregation programs, which remedied past wrongs committed by the school districts in question, and quotas used by universities to foster diversity in the student body. Absent a showing that the university had engaged in discriminatory practices in the past, the use of racial quotas during the admissions process violated the constitutional rights of nonminority applicants. On the other hand, the Court upheld a quota program created by Congress for minority employment on the ground that it was “remedial and corrective for past wrongs, and therefore constitutional.” Ultimately, the Court held that all racial preferences and set-asides, whether at the state or federal level, must meet the strict scrutiny standard of being narrowly tailored to serve a compelling governmental interest.

Regents of the University of California v. Bakke (1978)

United Steelworkers v. Weber (1979)

Fullilove v. Klutznick (1980)

City of Richmond v. J.P. Croson Co. (1989)

Adarand Constructors v. Pena (1995)

Memphis Firefighters v. Stotts (1984)

Wygant v. Jackson Board of Education (1986)

Firefighters v. Cleveland (1986)

Sheet Metal Workers v. Equal Opportunity Commission (1986)

Women’s Rights

The civil rights movement of the 1960s brought women’s rights to the forefront of public debate. The Burger Court issued a number of important decisions striking down barriers to gender equality in employment under Title VII of the 1964 Civil Rights Act, which prohibited gender discrimination as well as racial discrimination. It also struck down discriminatory state and federal laws on the ground that they imposed arbitrary gender classifications in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

Goesaert v. Cleary (1948)

Phillips v. Martin Marietta Corporation (1971)

Corning Glass Works v. Brennan (1974)

Dothard v. Rawlinson (1977)

Los Angeles Department of Water and Power v. Manhart (1978)

Reed v. Reed (1971)

Cleveland Board of Education v. LaFleur (1974)

Frontiero v. Richardson (1973)

Taylor v. Louisiana (1975)

Craig v. Boren (1976)

Orr v. Orr (1979)

Gender Classification and Heightened Scrutiny

In Frontiero v. Richardson (1973), the Court came within one vote of subjecting gender discrimination to the same strict scrutiny test that requires the government to prove that the classification at issue serves a compelling governmental interest. Rather than subject gender discrimination to the rational basis test, in Craig v. Boren (1976) the Burger Court introduced a third level of judicial scrutiny to constitutional analysis: heightened (or, intermediate) scrutiny. Under it, the government must prove that the challenged gender classification serves an important governmental interest. The standard has not been consistently applied, and gender classifications in everything from criminal law to military conscription have been upheld.

Geduldig v. Aiello (1974)

Personnel Administrator v. Feeney (1979)

Kahn v. Shevin (1974)

Califano v. Webster (1977)

Michael M. v. Superior Court (1981)

Schlesinger v. Ballard (1975)

Rostker v. Goldberg (1981)

The Equal Rights Amendment

Besides pressing for change before the Court and in Congress, women’s rights advocates sought a constitutional amendment guaranteeing complete legal equality to women. The proposed Equal Rights Amendment stipulated, “Equality of rights under the law shall not be abridged by the United States or by any State on account of sex.” The amendment authorized Congress to enforce its provisions with appropriate legislation. However, the amendment fell three states short of the three-fourths majority required when the deadline for ratification passed in 1982.

Equal Rights Amendment

Martha Griffiths and the Equal Rights Amendment

House Judiciary Report on the Equal Rights Amendment (January 26, 1971)

Chapter 28

Reproductive Rights

The Court’s recognition of a constitutional right to privacy in Griswold served as the basis for a line of divisive rulings on reproductive rights. In Roe v. Wade (1973) the Court held that the right to privacy encompasses a woman’s right to choose whether or not to terminate her pregnancy. Besides recognizing the right of women to obtain an abortion, the Court outlined the permissible restrictions a state might impose on that right, and prescribed a trimester framework within which abortions might be regulated. Critics denounced the holding as judicial legislation, and opposition to the decision divides the country down to the present.

Roe v. Wade (1973)  

Planned Parenthood of Missouri v. Danforth (1976)

News Article: “Justice Ginsburg: Roe v. Wade Decision Came Too Soon”

Book: Before Roe v. Wade: Voices that Shaped the Abortion Debate before the Supreme Court’s Ruling

Public Funding for Abortion

State and federal legislators responded to Roe by limiting public funding for abortions. In some states, public funding was available only for abortions deemed medically necessary. The Hyde Amendment prohibited the use of federal funds even for therapeutic abortions. The Supreme Court upheld the funding restrictions, reasoning that the constitutional right to an abortion does not include a constitutional right to publicly funded abortions.

While the states need not facilitate abortions, neither may they obstruct the right to obtain them. In Akron v. Akron Center for Reproductive Health (1983), the Court struck down a state measure requiring women seeking an abortion to be hospitalized for the procedure, and for physicians to read them a statement that “the unborn child is a human life from the moment of conception[.]” The Court invalidated the law as an obstacle to abortion without any medical justification.

Maher v. Roe (1977)

Harris v. McRae (1980)

Akron v. Akron Center for Reproductive Health (1983)

Attempts to Circumvent Roe

Similarly, the Court struck down a Pennsylvania statute requiring physicians to advise women of alternatives to abortion and to record personal information about women seeking abortions. The 5–4 majority held that the law had the effect of intimidating women seeking abortions and preventing them from making a free choice whether or not to terminate the pregnancy. But three years later, a new majority emerged on the Court more willing to allow the states greater latitude in regulating reproductive rights. By a 5–4 margin in Webster v. Reproductive Health Services (1989), the Court upheld a Missouri statute declaring that fetuses have the same rights as other persons, and banning nontherapeutic abortions in medical facilities receiving public funds.

Thornburgh v. American College of Obstetricians and Gynecologists (1986)

Webster v. Reproductive Health Services (1989)

Roe v. Wade Modified

The Court’s ruling in Webster prompted a flurry of state legislation restricting access to abortions and imposing requirements on the physicians who performed them, setting the stage for a review of Roe. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the court reaffirmed Roe by a narrow 5–4 margin. But the Court also upheld the right of the states to regulate abortions more closely than before. The Court held that regulations touching upon abortion are invalid only if they impose an “undue burden” on the woman’s right to obtain an abortion. It also rejected the trimester framework prescribed by the Roe court, nor did it require government to assume a neutral stance on the abortion decision. That this modified version of Roe survived by a single vote underscores the unsettled state of reproductive rights in America.

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

Partial-Birth Abortions

In Stenberg v. Carhart (2000), the Court invalidated a Nebraska statute categorically prohibiting partial-birth abortions on the ground that the statute imposed an undue burden on the right of abortion by failing to include an exception to preserve the health as well as the life of the woman. The ruling made no new law, but it underscored the sharp divisions that exist both on the Court and in the nation with respect to abortion rights.

Stenberg v. Carhart (2000)

The Right to Die

In Cruzan v. Missouri Department of Health (1990) all nine justices of the Court recognized the right to refuse medical treatment under the common-law doctrine of informed consent. However, the justices were divided on the issue of whether anyone other than the patient could make that decision. By a 5–4 margin, the Court held that only the patient can decide to refuse medical treatment.

Cruzan v. Missouri Department of Health (1990)

Assisted Suicide

While Cruzan recognized the right to refuse medical treatment, it said nothing about whether a terminally ill patient might obtain medical assistance to bring about death. The Court upheld state prohibitions on physician-assisted suicides on the ground that the liberty protected by the Fourteenth Amendment does not include a constitutional right to assisted suicide. That issue, according to Chief Justice Rehnquist, is better left to the political process. Indeed, in Gonzales v. Oregon (2006), the Court upheld a state statute legalizing physician-assisted suicide.

Washington v. Glucksberg (1997)

Vacco v. Quill (1997)

Gonzales v. Oregon (2006)

Medical Use of Marijuana

In Gonzales v. Raich (2005) the Supreme Court held that the federal Controlled Substances Act trumps state laws legalizing the use of doctor-prescribed marijuana for medical conditions. Justices Rehnquist, O’Connor, and Thomas wrote spirited dissents, rejecting the majority’s interpretation of the commerce power as outdated and over-broad. The issue will likely be revisited in the near future, as the Obama administration has signaled that it will not challenge certain state laws legalizing medical and/or recreational marijuana.

Gonzales v. Raich (2005)

DOJ Memorandum: Guidance Regarding Marijuana Enforcement (August 29, 2013)

Gay and Lesbian Rights

In Bowers v. Hardwick (1986), the Court held that the Constitution does not afford homosexuals a right to engage in sodomy. But in 2003, the Court overturned that ruling on the ground that homosexuals’ “right to liberty under the Due Process Clause gives them the full right to engage in this conduct without intervention of the government.” The change in public attitudes toward homosexuality within the space of two decades had much to do with the ruling. While the Court recognized the right of private organizations to exclude people on the basis of their sexual orientation, it struck down state measures penalizing individuals for homosexual conduct.

Timeline: Milestones in the American Gay Rights Movement

Bowers v. Hardwick (1986)

Romer v. Evans (1996)

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)

Boy Scouts of America v. Dale (2000)

Lawrence v. Texas (2003)

Chapter 29

Search and Seizure Standards Relaxed

Chief Justice Burger met the public controversy over the Warren Court's criminal justice jurisprudence with great subtlety and political skill. Rather than overturn the Warren-era decisions, the Court qualified them with numerous exceptions. The Court relaxed the standards of probable cause so that law enforcement officers could obtain warrants more easily. It also relaxed the standards for warrantless searches of individuals and their automobiles. Finally, the Court held that searches incidental to arrest could be conducted without a warrant in order to protect the arresting officer from concealed weapons and to prevent the suspect from destroying evidence.

United States v. Harris (1971)

Schneckloth v. Bustamonte (1973)

Terry v. Ohio (1968)

Michigan v. Long (1983)

Arkansas v. Sanders (1979)

Robbins v. California (1981)

United States v. Ross (1982)

Chimel v. California (1969)

United States v. Robinson (1973)

Gustafson v. Florida (1973)

The Good Faith Exception to Illegal Searches

The Court created a good faith exception to illegal searches. Where the police unintentionally violated the Fourth Amendment rights of a suspect, the evidence they obtained might nevertheless be admissible. Justice Brennan vigorously dissented to the exception on the ground that the purpose of the exclusionary rule was to protect constitutional rights regardless of the subjective mindset of the police.

United States v. Peltier (1975)

United States v. Leon (1984)

Restricting the Exclusionary Rule

The Burger Court further weakened the exclusionary rule by ruling that illegally obtained evidence could be used to impeach the credibility of defendants on cross-examination. It also held that defendants could not seek federal habeas review when state courts had found that no Fourth Amendment violation had occurred.

Stone v. Powell (1976)

United States v. Havens (1980)

Harris v. New York (1971)

Electronic Surveillance and the Fourth Amendment

Notwithstanding the exceptions to the exclusionary rule, the Supreme Court has defended the Fourth Amendment right to privacy from encroachments by modern technology. The Warren Court formulated a two-part test for the admissibility of evidence obtained through warrantless wire taps: Did the defendant have a subjective expectation of privacy when the surveillance occurred, and was that expectation reasonable? The Court extended that test to all forms of electronic surveillance in Kyllo v. United States (2001), which involved evidence obtained through the warrantless use of thermal imaging.

Katz v. United States (1967)

Kyllo v. United States (2001)

Miranda Rights Restricted

The Burger Court weakened the Miranda decision in a series of cases. The Court ruled that statements made while a suspect awaited the arrival of counsel might be used against him in judicial proceedings, and testimony given before a grand jury might be used against witnesses regardless of whether they had been given Miranda warnings. The Court also held that admissions made in response to offhand remarks by police officers were not protected by the exclusionary rule on the ground that Miranda rights applied only to official interrogations. Perhaps the most significant limitation to Miranda came in United States v. Patane (2004) with the ruling that the poisonous tree doctrine does not apply to Miranda violations.

Oregon v. Hass (1975)

United States v. Mandujano (1976)

Kastigar v. United States (1972)

Michigan v. Tucker (1974)

Wong Sun v. United States (1963)

United States v. Patane (2004)

Michigan v. Mosley (1975)

Brewer v. Williams (1977)

Rhode Island v. Innis (1980)

Public Safety Exception to Miranda

In New York v. Quarles (1984) the Burger Court created the so-called public safety exception to Miranda. When there is an imminent danger to the police or to the public, the need to ensure public safety outweighs the defendant's privilege against self-incrimination. Admissions made under such circumstances and absent a Miranda warning are therefore admissible against the accused.

New York v. Quarles (1984)

Congress and Miranda

In 1968 Congress abolished the exclusionary rule as a federal remedy through Section 3501 of the Omnibus Crime Act. It took approximately thirty years for the constitutionality of the provision to come before the Supreme Court because the Department of Justice ignored it and continued to issue Miranda warnings. In Dickerson v. United States (2000) the Court finally held that the Miranda warnings were not mere rules of evidence subject to congressional repeal but part of the substantive protection afforded by the Fifth Amendment. Notwithstanding the exceptions carved out of the exclusionary rule, post-Warren cases continued to affirm the right against self-incrimination by subjecting the conduct of everyone from police officers to prosecutors to judicial scrutiny.

Dickerson v. United States (2000)

Missouri v. Seibert (2004)

Doyle v. Ohio (1976)

Brown v. Illinois (1975)

Sixth Amendment Rights and the Court

The Burger Court both restricted and extended Sixth Amendment rights recognized by the Warren Court. In Kirby v. Illinois (1972), the Court held that unindicted suspects do not enjoy the same right to have counsel present at police lineups as do indicted defendants. On the other hand, in Argersinger v. Hamlin (1972) the Court extended the right of counsel to minor offenders in cases where conviction might result in a prison sentence.

United States v. Wade (1967)

Kirby v. Illinois (1972)

Argersinger v. Hamlin (1972)

Scott v. Illinois (1979)

Jury Trial Modifications

In a series of cases involving jury size, the Court held that six-member juries are sufficient in state criminal prosecutions and in federal civil cases. With respect to the former, the Court held that juries with less than six members are unconstitutional. These rulings had the practical effect of ending the longstanding common-law right to a twelve-member jury trial.

Williams v. Florida (1970)

Colegrove v. Battin (1973)

Ballew v. Georgia (1978)

Split Jury Verdicts

In In re Winship (1970) the Court held that proof of guilt beyond a reasonable doubt is required for a conviction in criminal cases under the Due Process Clause of the Fourteenth Amendment. In two subsequent cases, the Court held that nonunanimous jury verdicts in state proceedings are consistent with the reasonable-doubt standard and with the Sixth Amendment jury trial guarantee.

Johnson v. Louisiana (1972)

Apodaca v. Oregon (1972)

In re Winship (1970)

Findings of Fact for Jury Determination Only

Although the Court modified some of the common-law features of jury trial at the state level, it affirmed the exclusive power of the jury to determine the facts of the case under the Sixth Amendment. The Court overturned two state rulings in which judges rather than juries made factual determinations. It also invalidated mandatory sentencing guidelines requiring judges to increase sentences on the basis of their own fact findings.

Apprendi v. New Jersey (2000)

Blakely v. Washington (2004)

United States v. Booker (2005); United States v. Fanfan (2005)

The Right of Confrontation Modified

The Court weakened the Sixth Amendment right of confrontation by upholding a Maryland law allowing alleged victims of child abuse to testify by closed circuit camera outside the presence of the defendant. The 5–4 majority upheld the procedure as a legitimate public policy exception to actual confrontation on the ground that the state had a compelling interest in protecting child abuse victims from further psychological trauma. The fact that defense counsel had the opportunity to cross-examine the witness and that the judge and jury were able to observe the witness's demeanor was sufficient to meet the confrontation requirement of the Sixth Amendment.

Maryland v. Craig (1990)

Coy v. Iowa (1988)

Chapter 30

The Proportionality Doctrine

The Eighth Amendment prohibition against cruel and unusual punishments clearly was not intended by the Framers to proscribe the death penalty. But as early as 1910 the Court recognized that the meaning of the Eighth Amendment is not frozen in time. Punishments must be proportional to the crime, and a society’s conception of proportionality may change over time. In 1958, the Court held that the Eighth Amendment draws its meaning “from the evolving standards of decency that mark the progress of a maturing society,” setting the stage for review of capital punishment as a permissible penalty for particular crimes and offenders.

Weems v. United States (1910)

Trop v. Dulles (1958)

Litigating the Death Penalty

Early challenges to capital punishment did not question the constitutionality of the death penalty itself, but rather the circumstances under which it is imposed. In Witherspoon v. Illinois (1968) the Court overturned a state statute that automatically excluded opponents of the death penalty from juries in capital cases as a violation of the Sixth and Fourteenth Amendments. In McGautha v. California (1971) the Court upheld a state statute giving juries complete discretion over whether to impose the death penalty in capital cases. But in Furman v. Georgia (1975) the Court considered for the first time whether the death penalty violated the Eighth Amendment prohibition of cruel and unusual punishment. The Court held that while the death penalty itself was constitutional, it was administered capriciously in Georgia and therefore not constitutional there. The case led to a moratorium on executions in the United States pending the revision of state laws to give juries objective guidelines in imposing the death penalty. The Court upheld the revised statutes as constitutional, thus validating capital punishment as a permissible penalty. However, the Court would continue to narrow the circumstances under which it might be imposed.

Witherspoon v. Illinois (1968)

McGautha v. California (1971)

Furman v. Georgia (1972)

Gregg v. Georgia (1975)

Roberts v. Louisiana I (1976)

Roberts v. Louisiana II (1977)

Bell v. Ohio (1978)

Proportionality and the Death Penalty

The proportionality doctrine was used to limit the instances in which the death penalty could be imposed. The Court held that capital punishment was disproportional to the offense of rape in Coker v. Georgia (1977). It extended that ruling to cases involving the rape of children in Kennedy v. Louisiana (2008). In effect, the cases held that only the taking of life justifies the taking of life.

Coker v. Georgia (1977)

Enmund v. Florida (1982)

Kennedy v. Louisiana (2008)

Juveniles and the Death Penalty

In Thompson v. Oklahoma (1988) the Court held the death penalty cruel and unusual when applied to a fifteen-year-old. But the penalty was upheld a year later with respect to sixteen- and seventeen-year-old defendants. The Court came to these disparate conclusions by looking to the practice of states for evidence of current standards of decency.

Thompson v. Oklahoma (1988)

Stanford v. Kentucky (1989); Wilkins v. Missouri (1989)

Capital Punishment and Race

Civil rights activists have long criticized the death penalty for its disproportionate impact on minorities. In McCleskey v. Kemp (1987), the Court rejected an equal protection challenge to the death penalty in Georgia, where blacks who killed whites were 4.3 times more likely to be sentenced to death than defendants who killed blacks. The Court held that absent a showing of actual racial bias in the petitioner’s case, such statistical evidence itself could not sustain an equal protection challenge. In 2009 North Carolina passed a law allowing the admission of statistical evidence of racial bias in challenges to a death sentence, but the law was repealed by the state legislature in 2013.

McCleskey v. Kemp (1987)

National Statistics on the Death Penalty and Race

North Carolina Racial Justice Act (2009)

News Article: “North Carolina Repeals Law Allowing Racial Bias in Death Penalty Challenges” (June 5, 2013)

Habeas Corpus and the Death Penalty

Sequential habeas corpus appeals became an effective strategy for death row inmates to delay execution indefinitely. The Court put an end to the practice in McCleskey v. Zant (1991), ruling that when a capital conviction has been upheld by the highest state court, the prisoner has six months in which to file one habeas petition raising as many issues as the prisoner wants.

McCleskey v. Zant (1991)

Death Sentences and the Sixth Amendment

In Ring v. Arizona (2002), the Court applied the rule of Apprendi v. New Jersey (2000) in holding that juries, not judges, must determine whether the aggravating circumstances necessary to support a death sentence have been met.

Ring v. Arizona (2002)

Narrowing the Death Penalty

In Atkins v. Virginia (2002), the Court overturned a 1989 ruling allowing the execution of mentally retarded offenders as a violation of the Punishments Clause of the Eighth Amendment. Times had changed, according to the majority, and with them society’s evolving standards of decency had changed. The execution of mentally retarded offenders was held to be no longer constitutionally permissible. The ruling was and remains highly controversial, and will be revisited by the Court in Hall v. Florida in 2014.

Atkins v. Virginia (2002)

Penry v. Lynaugh (1989)

SCOTUSblog Coverage: Hall v. Florida

Execution of Juveniles Ends

In Roper v. Simmons, the Court ruled in a 5–4 decision that the death penalty is unconstitutional for offenders under the age of eighteen. The Court held that the prohibition of the juvenile death penalty by thirty states was sufficient evidence of a national consensus that the execution of minors was cruel and unusual. The majority also cited world opinion on the matter. As with Atkins, the decision was highly controversial, particularly the reference to foreign law in overturning domestic legislation. Critics also questioned the propriety of making the Supreme Court the moral voice of the nation.

Roper v. Simmons (2005)

Chapter 31

Changes in Court Personnel

For the twenty years following Nixon’s election to the presidency, vacancies on the Court were filled by Republican presidents. Chief Justice Burger proved a more moderate leader than conservatives had hoped for, but subsequent Republican appointments ensured that the Court did not return to the Warren years.

John Paul Stevens

Sandra Day O’Connor

Antonin Scalia

Anthony M. Kennedy

The Bork Nomination

President Reagan’s nomination of Robert Bork to the vacancy created by the retirement of Justice Powell triggered an unprecedented political firestorm. Democrats controlled the Senate, and the Judiciary Committee, under the chairmanship of Senator Joseph Biden, proved an insuperable obstacle to Bork’s confirmation. Opponents focused on Bork’s political views rather than on his judicial record, which even Bork’s critics agreed was excellent. Even though the outcome was a foregone conclusion, Bork refused to back down, forcing a full Senate vote on his confirmation. But his stand changed nothing, and confirmation was denied by the widest margin in the history of the Supreme Court.

Video: C-Span Coverage, Bork Confirmation Hearing (1987)

Bork Gives Reasons for Continuing Fight (Statement of October 9, 1987)

Article: Andrew Cohen, “The Sad Legacy of Robert Bork”(December 19, 2012)

Bush’s Court Appointments

President George H.W. Bush appointed two justices to the Court. David Souter was confirmed without serious opposition, but the confirmation hearing of Clarence Thomas quickly degenerated into the sort of political circus that had accompanied the Bork nomination. When members of the Judiciary Committee were unable to engage Thomas on political issues of the sort that had helped derail Bork’s nomination four years earlier, things took a lurid turn. A former colleague testified that she had been sexually harassed by Thomas years earlier, allegations that Thomas flatly denied. Thomas was ultimately confirmed by the Senate by the narrowest margin in more than a century.

David Souter

Clarence Thomas

Video: C-Span Footage, Thomas Confirmation Hearing (1991)

Transcript, Thomas Confirmation Hearing (1991)

Clinton’s Appointees

The Bork and Thomas confirmation hearings prompted Republicans to take the position that the professional qualifications of the nominees rather than their personal politics should guide the confirmation process. President Clinton nominated two highly qualified liberals to the Court: Ruth Bader Ginsburg, former general counsel for the ACLU, and Stephen Breyer, a noted legal scholar and public servant. Both were confirmed by the Republican-controlled Senate without serious opposition.

Stephen Breyer

Ruth Bader Ginsburg

The Clinton Impeachment

The impeachment of President Clinton was historic as only the third time in U.S. history that such proceedings were begun against a president. The proceedings marked the culmination of one of the biggest sexual and political farces in the history of the United States. A Republican-controlled House of Representatives alleged that Clinton had committed high crimes and misdemeanors when he perjured himself by lying under oath about an extramarital affair with a White House intern. The lurid details of the affair embarrassed Clinton’s supporters, but fell short of the high crimes and misdemeanors required by the Constitution. Clinton kept the presidency, but temporarily lost his license to practice law as a result.

Timeline of Clinton Impeachment

Articles of Impeachment against President William Jefferson Clinton

Washington Post: “Clinton Accused” (primary texts, news articles, and images relating to impeachment proceedings)

Bush v. Gore

The 2000 election was one of the most controversial in U.S. history. The candidates were roughly tied in electoral votes, and the outcome depended on Florida, where Bush led Gore by a few thousand votes. While Gore’s lawyers secured a Florida court order for manual recounts, Bush’s lawyers petitioned the federal courts to halt the recounts. The Supreme Court finally intervened, ruling that the Florida recount order violated guarantees of the Fourteenth Amendment. It further ordered that all recounts cease immediately, which effectively handed Bush the presidency.

Bush v. Gore (2000)

Article: Dahleen Glanton, “O’Connor Questions Court’s Decision to Take Bush v. Gore” (Chicago Tribune, April 27, 2013)

Spirits of Amendments Past

Article V of the Constitution places no time limits on ratification of proposed amendments, an omission underscored in 1992 by the ratification of the two-centuries-old Twenty-Seventh Amendment. As a practical matter, Congress has begun setting timeframes for the ratification of proposed amendments, a power recognized by the Court in Dillon v. Glass (1921).

Dillon v. Glass (1921)

Coleman v. Miller (1939)

Twenty-Seventh Amendment (Annotated)

Chapter 32

The Second Amendment

The nature and scope of the Second Amendment right to keep and bear arms remained unsettled until recently. Whether the amendment protected an individual or collective right related to militia service was clarified in District of Columbia v. Heller (2008). Speaking for a 5–4 majority in striking down a federal firearms regulation, Justice Scalia held that the amendment protects the individual's right to keep and bear arms for lawful purposes. The right may be regulated by legislation narrowly tailored to serve a compelling public interest. In McDonald v. Chicago (2010), the Court incorporated the Second Amendment into the Fourteenth, thus extending the right to keep and bear arms to both levels of government.

United States v. Miller (1939)

United States v. Lopez (1995)

Printz v. United States (1997)

District of Columbia v. Heller (2008)

McDonald v. Chicago (2010)

The War on Terror

The response to the terrorist attacks of September 11, 2001, has posed the greatest challenge to American constitutionalism in the new millennium. In a series of cases, the Supreme Court recognized the right of persons detained by the military to challenge their designation as enemy combatants in habeas corpus proceedings, thus extending the habeas jurisdiction of the federal judiciary beyond the territorial limits of the United States. The Court has held that these proceedings must meet certain minimum due process requirements. The holdings make it clear that the Court will not defer to the sweeping national security claims by the Executive that set the stage for the violation of constitutional right during World War II.

Photo Gallery: 9/11: The Day of the Attacks

9/11 Commission Report

Authorization for the Use of Military Force (September 18, 2001)

Authorization for the Use of Military Force (Legislative History)

Hamdi v. Rumsfeld (2004)

Rasul v. Bush (2004)

Rumsfeld v. Padilla (2004)

Hamdan v. Rumsfeld (2006)

Military Commissions Act

Boumedienne v. Bush (2008)  

Chapter 33

The Roberts Court

Chief Justice Roberts proved himself an adept consensus-builder in cases involving First and Eighth Amendment rights. But on deeply polarizing issues, such as race-based school assignments and voting rights, the Court remains as sharply divided as in the past.

John Roberts

Rumsfeld v. Forum for Academic and Institutional Rights (2006)

Gonzales v. O Centro Espirita Beneficente União do Vegetal (2006)

Baze v. Rees (2008)

School Desegregation

In Parents Involved in Community Schools v. Seattle School District No. 1 (2007) the Court decided by a 5–4 margin to strike down the use of race in assigning students to particular schools as violation of the Equal Protection Clause.

Parents Involved in Community Schools v. Seattle School District No. 1 (2007)

Criminal Due Process

In Herring v. United States (2009) the Court upheld and expanded the good faith exception to the exclusionary rule. The Court held that evidence obtained through an arrest and search under a cancelled warrant was admissible at trial, even though police error had kept the warrant on file. In previous cases, the error invalidating the warrant was not directly attributable to the police.

Herring v. United States (2009)

SCOTUSblog coverage of Herring v. United States

Tracking Devices and the Fourth Amendment

In United States v. Jones (2012), a unanimous Court held that installing a GPS device on a motor vehicle without a warrant violated the Fourth Amendment. The justices divided, however, on whether the defendant’s property rights or privacy rights had been violated. The majority opted for the former, holding that in attaching a GPS device to the vehicle, the police had violated his property rights.

United States v. Jones (2012)

Congressional Research Service: “United States v. Jones: GPS Monitoring, Property, and Privacy,” by Richard M. Thompson (April 30, 2012)

United States v. Knotts (1983)

United States v. Karo (1984)

Partial-Birth Abortion

In Gonzales v. Carhart (2007), the Court upheld a federal ban on partial-birth abortions that contained no exception protecting the health of women. Because the Court invalidated a Nebraska ban on partial-birth abortions in Stenberg v. Carhart (2000) for not allowing a health exception, the cases are difficult to reconcile.

Gonzales v. Carhart (2007)

Obama’s Court Appointments

President Obama has appointed two justices to the Supreme Court: Sonia Sotomayor and Elena Kagan. Sotomayor had served as a federal judge for almost twenty years prior to her nomination, receiving judicial appointments from both Republican and Democratic presidents. Kagan was Obama’s solicitor general at the time of her nomination. The Senate confirmed both without issue.

Sonia Sotomayor

Elena Kagan

Juveniles and the Eighth Amendment

The Roberts Court has expanded Eighth Amendment protections for minors convicted of crimes, ruling that mandatory life-without-parole sentences for juveniles are cruel and unusual punishment.

Graham v. Florida (2010)

SCOTUSblog Coverage of Graham v. Florida

Miller v. Alabama (2012); Jackson v. Hobbs (2012)

SCOTUSblog Coverage of Miller v. Alabama and Jackson v. Hobbs

Illegal Immigration and the States

The ruling of the Roberts Court in Arizona v. United States (2013) occasioned much political controversy. At issue was the constitutionality of an Arizona measure establishing state-level enforcement mechanisms against illegal immigrants. The Court invalidated the statute on the ground that federal power over immigration preempts state power to legislate on the subject.

Arizona v. United States (2013)

SCOTUSblog Coverage of Arizona v. United States

First Amendment Rights

Two First Amendment decisions of the Roberts Court have triggered much public debate. In Snyder v. Phelps (2011), an 8–1 majority held that political speech enjoys the highest level of First Amendment protection, even when that speech is offensive and morally repugnant. In Citizens United v. Federal Election Commission (2010), a 5–4 majority held that corporations enjoy the same free speech protection as individuals, and that regulation of their political communications is subject to strict scrutiny. The ruling overturned a line of cases subjecting corporations to a double constitutional standard.

Morse v. Frederick (2007)

Holder v. Humanitarian Law Project (2010)

United States v. Stevens (2010)

Snyder v. Phelps (2011)

SCOTUSblog Coverage of Snyder v. Phelps

Citizens United v. Federal Election Commission (2010)

SCOTUSblog Coverage of Citizens United v. Federal Election Commission

American Trade Partnership v. Bullock (2012)

Affordable Care Act

National Federation of Independent Business v. Sebelius (2012) upheld the constitutionality of the controversial Patient Protection and Affordable Care Act. Public opinion divided sharply on the statute, and speculation ran high on how the Court would rule. A sharply divided Court ruled that the ACA’s individual mandate constituted an unconstitutional exercise of the commerce power, but that it was nevertheless a constitutional exercise of Congress’s tax power. That the Court also ruled the payment not a tax for purposes of the Anti-Injunction Act puzzled many, not least the dissenting justices.

Patient Protection and Affordable Care Act

National Federation of Independent Business v. Sebelius (2012)

SCOTUSblog coverage of National Federation of Independent Business v. Sebelius

Voting Rights

In Shelby County v. Holder (2013) the Court revisited the 1965 Voting Rights Act, ruling that its Section 4 preclearance requirements were no longer applicable to changed circumstances in the modern South. The ruling did not go to the constitutionality of preclearance itself but left it up to Congress to enact new preclearance criteria.

Shelby County v. Holder (2013)

Audio Slideshow: After Shelby County

Marriage Equality and the Court

The constitutionality of federal and state measures banning same-sex marriage has arguably been the most polarizing issue before the Roberts Court. The Court declined to rule on the constitutionality of a California measure prohibiting same-sex marriages in Hollingsworth v. Perry (2013) on the ground that the parties lacked standing under Article III of the Constitution to bring the appeal. The dismissal left standing a federal district court ruling that the state ban violated the Equal Protection Clause of the Fourteenth Amendment. But in United States v. Windsor (2013), the Court overturned a federal measure limiting federal marital benefits to unions between opposite-sex couples as unconstitutional under the Fifth Amendment. The ruling left the legal status of same-sex marriages entirely up to the states.

Hollingsworth v. Perry (2013)

SCOTUSblog coverage of Hollingsworth v. Perry:

United States v. Windsor (2013)

SCOTUSblog coverage of United States v. Windsor

News Article: “Reveling in Her Supreme Court Moment” (New York Times, December 10, 2012)

General Resources

General Online Resources on United States Constitutional History

  • ConSource provides a free online library of primary sources relating to United States constitutional history.
  • The Law Dictionary is a free online dictionary of legal terms.
  • The Legal Information Institute at Cornell University provides a rich online database of legal resources, including an annotated Constitution, Supreme Court reports, and federal statutes.
  • The Library of Congress website provides links to online exhibitions as well as digitized collections of primary sources and scholarly works.
  • The Liberty Fund's Online Library of Liberty has digitized many important primary sources in Anglo-American constitutional history.
  • The Oyez project at Chicago-Kent College of Law provides an online database of Supreme Court reports, along with digitized audio files of oral argument.
  • SCOTUSblog provides late-breaking filings, news, analysis, and audio from the Supreme Court.
  • The website of the Supreme Court Historical Society provides historical information about the Court and its members, along with links to scholarly articles on U.S. constitutional history.
  • The website of the United States Supreme Court provides information about the Court's docket, along with links to recent decisions and information about the current membership of the Court.
  • The authors' annotated recommended readings: Download

General Pedagogical Resources