I. Introduction: The Taproots of American Constitutionalism

The American Constitution is the latest of a long line of efforts in Western civilization to limit the power of government. The American founders were trying to accomplish an old thing-republican self-government-in a new way. They were peculiarly conservative revolutionaries. They were men of the Enlightenment, excited about the discoveries of the revolution in natural science and the New World, of the Protestant Reformation as well as secular philosophy. At the same time, they were steeped in the tradition of the ancient (Greco-Roman) and medieval (Judeo-Christian) worlds. Alexander Hamilton noted that "The science of politics… like most other sciences, has received great improvement," and he began the Federalist Papers with the observation that "It seems to have been reserved to the people of this country, by their conduct and example to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force." Thus, a brief investigation of the taproots of western constitutionalism will set the context for American constitutional history.

Government under a written constitution, with institutional safeguards against abuse of power, is almost entirely a modern phenomenon. In the ancient and medieval period, government was responsible to a higher authority such as nature, reason, law, or God, in what is generally referred to as the "natural law" tradition, but there were few effective political and institutional means of applying such limits. The American Constitution attempted to give effect to what Jefferson in the Declaration of Independence called "the laws of Nature and of Nature's God."

The most basic idea of constitutional government for the western imagination derived from the Hebrews, who gave the world the idea of a political community responsible to a sovereign God. This God bound himself by law, particularly in the covenants that he entered into with man. The ideal form of government for the Hebrews was a sort of tribal theocracy, with God ruling through the occasional office of prophet or judge, the great charismatic figures from Moses to Gideon, Samson, and Samuel. The Hebrew people eventually demanded a king, to be like other nations. But Hebrew kingship was peculiarly limited. Kings were stewards of God's people and responsible to him, and the offices of prophet and priest remained separate. This separation of secular and ecclesiastical offices remained one of the most important ideas that preserved liberty and limited government into the modern period. At the same time, Hebrew political history also provided a justification for oppressive government, with its idea that God often used tyrants to punish the people for their sins-that tyrants were "the scourge of God."

The Hebrews were important in western constitutional thought because the western mind was fundamentally religious until the modern age. The founders of the American constitutional system were all well-versed in Scripture and, however religiously unorthodox some of them may have been, knew that they were legislating for an intensely religious citizenry. But the Hebrews did not often possess political independence or rule themselves, so there was not much Hebrew political history upon which to draw. Nor did the Bible, the only source of this history, provide much detail about the particular institutions or practices by which government was carried on. Christian Europe drew more deeply upon the ideas and experience of the Greeks and Romans.

The Greeks provided the first real political science for the West, arising out of the experience of the poleis, or city-states, of the classical period, particularly Athens. The Greeks defined themselves in this period by their political constitutions, in which the people of a community governed themselves. Their laws were not handed down by the gods or priests, nor were they slaves to a despot, like the Persians. The good life for the Greeks was the political life: in Aristotle's phrase, man was an animal intended by nature to live in a polis, or a political animal. "Freedom" for the Greeks meant the independence of their poleis, and the power to participate in government. The best life was to devote oneself to the polis and to sacrifice oneself to it. The more modern notion of individual liberty, to be free to live one's private life without public interference, the Greeks denigrated in favor of what has been called "positive liberty."

The Greeks, particularly Aristotle, also devised the basic classification of constitutions, depending on whether they were governed by the one, the few, or the many. The definition of good or constitutional government was whether the one (monarchy), the few (aristocracy), or the many (polity) governed for the good of the whole. If they governed only for themselves, they were the corrupt forms of tyranny, oligarchy, or democracy. Aristotle did suggest that a middle or mixed regime might be preferable, a way to avoid the excesses of any of the pure forms. Most importantly, Athens provided the most famous example of democracy in action. Fifth-century Athens was a regime in which every citizen (free, adult male children of citizens) was a legislator. But, for all the magnificent intellectual and cultural achievements of the city, its degeneration into civil war, defeat in the Peloponnesian War, and execution of Socrates made democracy a by-word for most of European history. Democracy's reputation for volatility, factional strife, and majority tyranny was alive and well in the minds of the American founders, who were all educated in classical history and philosophy.

The more practical-minded Romans gave more institutional solidity to Greek ideas of public life. The Romans shared the Greek idea of the polis in what they called the republic-government devoted to res publica, or public things, rather than to private ones. The Roman republic was probably the most widely-admired ancient regime for Americans of the founding period. The Greek philosopher-historian Polybius depicted the republic as the realization of the Aristotelian suggestion of a "mixed regime," in which the three social orders each had power and were able to keep one another in check. This idea of "checks-and-balances," however far removed it was from the realities of Roman political life, provided an appealing model for later generations. In particular, Anglo-Americans of the British Augustan age believed that the British constitution preserved liberty in a similar fashion, and the idea would be built into the Constitution of 1787. On the other hand, in its own descent from republic to empire in a bloodbath of factional strife, Rome provided the object lesson of overweening oligarchy.

The Romans expanded and elaborated on Greek political ideas. Cicero, the famous orator and statesman at the end of the republican period, gave immortal expression to the Greco-Roman idea of natural law. "The law is right reason in agreement with nature; it is of universal application, unchanging and everlasting. And there will not be a different law at Rome and Athens or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and times." The Roman empire provided Roman jurists with the opportunity to seek out the common elements of the laws of all peoples, compiling what they called the jus gentium, or law of nations, the foundation of international law. And, for all their devotion to public life, the Romans began to define a realm of private rights in what came to be called civil law.

Medieval Europe possessed a greater tradition of constitutional government than has usually been recognized. At the heart of medieval political history is the constant tension between secular and ecclesiastical authorities. Nobody imagined a "separation of church and state"; all assumed that secular powers had duties to the church and that church authorities had secular roles to play. The question was one of degree and priority. But the upshot of the constant wrangling over degree and priority was that Europe never succumbed to a consolidated church-state. This is in large part the explanation for the unusual degree of liberty and local self-government in western Europe, and in England in particular.

Natural law and Stoicism blended well with the universalization of Judaism that Christianity effected. Christianity did not provide a detailed political program. The most important instruction from the Gospels was Jesus' admonition to "render unto Caesar the things that are Casear's, and render unto God the things that are God's." The temporal and spiritual realms were not completely united, nor completely separate, but in tension. There were extremists on both sides who desired either complete liberation from all earthly authority, or who sought to fuse earthly and spiritual power in a theocracy. Until the Second Coming, at least, spiritual and temporal claims would continue to act on men. By the time of the collapse of the western Roman Empire, a "two swords" theory had taken hold, distinguishing the secular and ecclesiastical realms.

The chief characteristic of the political life of medieval Europe was fragmentation. Despite the ideal of Christendom or the res publica Christiana, where the temporal and spiritual powers worked together, the actual situation was one of competition within and among secular and ecclesiastical powers. Nobles and bishops often frustrated the designs of their superiors. Popes would often conspire with secular lords against their kings, kings would often intrigue with the bishops of their domains against popes. The second millennium saw the emergence of a social group with its own political agenda: the new urban bourgeoisie, townsmen who wanted to be free of both feudal and ecclesiastical control. This group in particular led the way toward civil liberty as we understand it today. The phrase that is often used is: "city air makes men free." Medieval cities were full of associations that engaged in all sorts of secular and religious activities-guilds, confraternities, communes, monasteries, and universities. These institutions constituted "civil society," the crucial organizations that mediated between the individual and the state, providing room of liberty and experience in self-government. The device of political representation also emerged in the Middle Ages, something that the ancient republics lacked and an element that would make modern republican government possible. Behind the disorder and complexity of medieval political life was a rough-and-ready constitutionalism that prevented absolutism.

One of the most important sources of medieval liberty was the principle of customary law, reinforced by the infusion of Germanic barbarian tribes into the Roman Empire. Unlike Roman emperors, Germanic kings could not simply make law-they had not acquired the sovereign power of the people as emperors claimed. Over time a doctrine emerged that separated gubernaculum, or the sphere in which kings could act with discretion, from jurisdictio, where they were controlled by customary law, in a way that preserved the lives, liberties, and property of their subjects.

The triumph of the secular nation-state and the breaking up of the Roman Catholic Church set the stage for modern constitutionalism. While the motives of the Protestant reformers were primarily theological, they also had important political aspects. All of them rejected papal supremacy within the church. Most, like Martin Luther, ware satisfied to substitute the secular prince for the pope, and to retain bishops and ecclesiastical authority. The Calvinists went further, vesting authority in smaller groups of churches and giving a prominent role to laymen-the Presbyterian form of government. This was particularly important for America, because Calvinist or reformed Protestantism was the deepest religious influence in American history. The Puritans who settled New England were radical Calvinists who believed that even Presbyterian government was too hierarchical. For them, each congregation was independent. And even nominally episcopalian churches in America practiced a sort of de facto congregational independence. Simply put, relatively democratic church government provided valuable experience for civil government. Calvinists in Europe found themselves persecuted by both Catholics and Episcopal Protestants; the most intense of the wars of religion in the seventeenth century involved such three-way contests.

There were two, opposite reactions to the catastrophic wars of religion. One was absolutism, the belief that the secular authorities needed complete control of the Church, and that there were no rights of religion or conscience against the state. On the other had, reformed Protestants began to develop a theory of religious toleration, to deny that the state had any power to coerce people regarding religious matters. The doctrine of absolutism prevailed on the continent, but in England the principle of toleration triumphed. The American colonies got their start and developed during this great battle in England of absolutism versus constitutionalism, and this provided the most immediate history for the framers of the American Constitution.

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Textbooks

• Michael Les Benedict, The Blessings of Liberty (1996).
• Kermit Hall, The Magic Mirror (1989).
• Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origin and Development, 7th ed., 2 vols. (1991).
• Andrew Cunningham McLaughlin, A Constitutional History of the United States (1935).
• Melvin Urofsky and Paul Finkelman, A March of Liberty (2001).

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Document Collections

• Leonard W. Levy, Kenneth W. Karst, and Dennis J. Mahoney, eds., The Encyclopedia of the American Constitution, 4 vols. (1986).
• Philip S. Kurland and Ralph Lerner, eds., The Founders Constitution, 5 vols. (1987).
• Francis N. Thorpe, ed., The Federal and State Constitutions, Colonial Charters and Other Organic Laws, 7 vols. (1909).

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History of Constitutionalism

• Herman J. Belz, A Living Constitution or Fundamental Law? American Constitutionalism in Historical Perspective (1998).
• Edward S. Corwin, The "Higher Law" Background of American Constitutionalism (1955).
• Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, 4th ed. (1968).
• Charles Grove Haines, The Revival of Natural Law Concepts (1930).
• Charles H. McIlwain, Constitutionalism: Ancient and Modern (1947).
• Francis D. Wormuth, The Origins of Modern Constitutionalism (1949).

II. The Anglo-American Constitutional Experience

Up until the American Revolution, most American colonists thought of themselves as Englishmen, with all of the “rights of Englishmen.” England enjoyed a reputation for constitutional liberty and, while not without its mythological elements, the reputation was well deserved on the whole. All of the principles of Greco-Roman, Judeo-Christian, and medieval constitutionalism contributed to it. Most important, England withstood the challenge of absolutism in the sixteenth and seventeenth centuries, and could celebrate a “Glorious Revolution” in 1688. In the midst of these political and constitutional struggles, England founded colonies in North America where the seeds of liberty struck still deeper roots.

The most popular view of the development of English rights in the period of the American founding was that of primordial Anglo-Saxon liberty. In this story, the Germanic invaders brought their customs of tribal democracy and limited kingship from the forests of Germany to England. These ancient liberties were extinguished when the Norman conquerors of 1066 imposed the yoke of feudalism and Roman law, and the English began to recover it with Magna Carta in 1215. While often exaggerated and distorted, the myth contains a germ of truth, and it certainly had a powerful effect on the Anglo-American imagination for centuries, in ways that influenced their politics.

Magna Carta is the cornerstone of English constitutional liberty, establishing what would come to be known as the “rights of Englishmen.” Its first provision confirmed the freedom of the church. This kept alive the separation of church and state as bulwark against consolidated power. Article twelve provided for consent to taxation. This was probably the most important practical provision of the charter, for nothing more effectively limits government power than limiting government revenues. Other articles provided for trial by a jury of one’s peers, prohibited arbitrary deprivation of liberty or property, and guaranteed certain procedures in criminal prosecutions. Most of these were summarized in article thirty-nine, which said, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” This came to be called “due process of law” or “the rule of law.”

It is true that Magna Carta was concerned only with the particular interests of a small group of people, the nobility of thirteenth century England. And it is true that later politicians and historians often inflated its importance and created something of a myth about the establishment of English liberty in 1215. But ideas often take on a life of their own, far beyond the intent of the men who first give expression to them. The barons at Runnymede were no philosophers, but they were giving concrete, historical form to principles of natural law—the separation of powers, consent, due process. They were interested in specific liberties, not liberty in general—and this was better for liberty in the long run than if they had been speculative about it. One thing more was needed to secure these rights: an institution of government. Magna Carta contained a very complicated procedure for making sure that the king kept his promises, but it was several decades before this developed into the body that would really do the job: Parliament.

Certainly the thirteenth century English already considered themselves an exceptionally free people, comparing themselves favorably with the French. In England the king was limited by law and custom; in France, under Roman law, the king was above the law. Henry of Bracton began to distinguish gubernaculum, or the realm of the kings’ prerogative and discretionary power, from jurisdictio, when the king was limited by legal procedure. Two hundred years later, Sir John Fortescue, chief justice under King Henry VI, directly denied that the Roman principle of imperial sovereignty applied to England. “A king of England is obligated by his coronation oath to the observance of the law,” Bracton wrote. “An English king cannot, by himself or his ministry, lay taxes, subsidies, or impositions upon the subject, of any kind whatsoever. He cannot alter the laws, or make new ones, without the express consent of the whole kingdom in Parliament assembled.”

Fortescue wrote just as the Tudor family was about to consolidate political control of England and face the country with the prospect of continental-style absolutism. It was the Tudor King Henry VIII who set off England’s peculiar religious reformation—not out of any theological convictions, but because he could not have his marriage annulled— bringing the English church as much under royal control as any of the continental churches. It was quite in keeping with the drift toward absolutism in Europe that the Tudors took over the English Church, destroying the ecclesiastical check on secular power that had characterized the Middle Ages.

Though it helped Henry to take over the Church in the sixteenth century, Parliament came to be the main opponent of royal power in the seventeenth century, along with the common law courts and the Calvinist churches. The Calvinists believed that the Church of England was Protestant in name only. The issue came to a crisis, twice, in the seventeenth century, when the English overthrew two kings. When the Tudor line ran out in 1603, James Stuart, king of Scotland, became king of England. James and his son Charles believed that kings were above the law, superior to parliaments, and could govern without them. They were particularly intent on getting money out of their subjects without Parliament’s consent, and created a number of new courts to collect them—courts that used Roman law, without juries. They also attempted to impose a high church Anglicanism on the English, which was offensive to both Catholics and Calvinists, and united them against the Stuarts. As one English historian put it, “The two religious bodies which have done the most to secure the rights of man are those which really cared least about individual liberty—the Roman Catholic Church and the Presbyterian.” That may sound a little harsh and bigoted, but it shows again how liberty and constitutional government has often been an unintended by-product of struggles for power.

When Charles again demanded funds from Parliament in 1628, he was met by the Petition of Right, in which Parliament reminded him that “no [tax] shall be levied by the king or his heirs in this realm, without the good will and assent of Parliament,” and that “No person shall be compelled to make any loans to the King against his will, because such loans are against reason and the franchise of the land.” They continued, “By the statute called the Great Charter of the Liberties of England [Magna Carta] it is declared that no freeman may be taken or imprisoned or be disseised of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land. And of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their homes, and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people.” Charles didn’t appreciated being lectured to in this fashion, so he dissolved Parliament and did not call another one until 1640.

This Parliament sat until the king was overthrown and executed, the House of Lords was abolished, and England became a republic. England was plunged into a civil war—one that was not as bloody as the wars if religion on the continent, but still traumatic enough. The conflict followed the pattern of most revolutions, with a democracy degenerating into anarchy and then into tyranny, a military dictatorship under Oliver Cromwell. After Cromwell’s death, Parliament invited the deceased king’s son, Charles II, to return from exile and restore the monarchy. Charles agreed to respect the “just, ancient and fundamental rights” of Englishmen, agreed to pardon all offenses committed during the civil war, and to freedom of conscience in religion. Charles was able to maintain the settlement for twenty-five years but his brother, James II, ended up raising suspicions of absolutism and Catholicism again. Parliament again overthrew the king, this time in the bloodless “Glorious Revolution” of 1688-89. Parliament invited William of Orange to be king, provided that he agreed to the terms of the Bill of Rights. The Bill of Rights was the most important statement of the rights of Englishmen for Americans of the colonial period. Many of its provisions are precisely those of our own Bill of Rights. It stated, “Whereas the late James II by the assistance of divers evil counselors, judges, and ministers employed by him did endeavor to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom, by assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament: By levying money for and to the use of the crown, by pretence of prerogative, for other time and in other manner than the same was granted by Parliament; By raising and keeping a standing army within this kingdom in time of peace, without the consent of Parliament, and quartering soldiers contrary to law; By causing several good subjects being Protestants to be disarmed, at the same time when papists were both armed and employed contrary to law; And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of subjects; and excessive fines have been imposed; and illegal and cruel punishments have been inflicted; all which are utterly and directly contrary to the known laws and statutes and freedom of this realm.” This restated most of the fundamental principles of English constitutionalism—consent to taxation, no standing armies in time of peace, the right to bear arms, due process in criminal procedure—that would appear again in the Declaration of Independence and the American Bill of Rights. Parliament also asserted control over the succession to the crown, so that from this point on no claim of monarchical sovereignty would threaten England again. Rather, it was said that the sovereign in England was “the King in Parliament,” a kind of mixed government that would prevent tyranny and preserve liberty.

In England, as on the continent, people drew two opposite conclusions from the wars of religion—and the English Civil War and Glorious Revolutions were primarily religious wars. These were the absolutist and the libertarian reactions. Thomas Hobbes wrote in response to the Civil War. The war showed Hobbes that men were beasts and would live the lives of beasts—“solitary, poor, nasty, brutish, and short,” as he put it— unless an all-powerful government protected them from one another. This was the origin and nature of government, which needed to be absolutely sovereign, what Hobbes called the “Leviathan.” There were no natural rights, in Hobbes’ view—the law of nature was the law of the jungle. This is the essential argument of modern absolutism. John Locke, on the other hand, looked at government with the experience of the Glorious Revolution in mind and devised a libertarian theory of government. For Locke, men had rights in the state of nature, and formed governments to secure those rights more effectively. They did not surrender their natural rights to that government—such rights were inalienable—and gave that government only limited powers. And if the government abused those powers, the people could alter or abolish it. In essence, Locke was giving a theoretical explanation to justify what had taken place in the Glorious Revolution, a modest, peaceful, basically conservative revolution. Four score and seven years later, Thomas Jefferson would do the same for the American Revolution.

It was during the tumultuous seventeenth century that the English established their first colonies in the New World. It is easy today to see that the seeds of rebellion were sown very early, that America was conceived in liberty long before 1776. Edmund Burke was among the few English statesmen to recognize it in the eighteenth century. The same forces of Protestantism and parliamentary government that drove the English civil wars were planted along the Atlantic coast.

Almost all of the settlers were reformed Protestants, and even those who were Anglican became accustomed to a high degree of self-government in their churches. There were no bishops in America, just as there was no secular aristocracy. The first constitutions in America reflected this. The Mayflower Compact simply transferred the covenant that made a congregation into a constitution for civil government. Other colonies that were established as business corporations turned their charters into constitutions. This is how the Massachusetts Bay Company, a project undertaken by religious dissenters in England, evolved. The General Court (originally a meeting of stockholders) became a civil representative body, with membership based on membership in a Puritan congregation. In Virginia, the House of Burgesses was used as a promotional device to attract settlers, to assure Englishmen that they would have a say in the government of the colony. The charter of the Massachusetts Bay Company granted that every settler and his descendants “shall have and enjoy all liberties and immunities of free and natural subjects within any of the dominions of us, our heirs and successors, to all intents, constructions, and purposes whatsoever, as if they and every one of them were born within the realm of England.”

Every colony had a charter from the king, and all of them guaranteed the settlers that they retained their rights as Englishmen in the New World. Every colony had a popular assembly that looked like a little parliament, most of which actually exercised more real power than the Parliament in London. Every American constitution also provided a great deal of local self-government. Most political action took place at the county and town level. There already was a great deal of “federalism” within the colonies. The word itself reflects these origins, derived from the Latin foedus, or “compact.”

The colonists were the most highly educated people in the world, and legal knowledge was especially widely diffused among them. Lawyers were especially important in politics, and every liberally educated man in America was familiar with legal principles and constitutional history. The colonies were also prosperous. They were little republics, and were also commercial republics. This made the common English hostility to taxation even more intense in America. Property rights were especially important in a country where property was widely held, and where business was not disdained as it was in the Old World, where deference to nobility of blood and office remained strong. Even in that part of British North America where these traits were least evident, among the great plantation owners of the South, the spirit of liberty was just as intense, because slaveholders had first-hand experience with tyranny.

All of this was reinforced by the fact that the British had largely left their American colonies to fend for themselves for a century and a half. The whole issue of the American Revolution was really laid out in the Glorious Revolution of 1689. The question was whether the principles of the Glorious Revolution, expressed in the Bill of Rights and Locke, applied to the colonies. Americans believed that they did. Americans had participated in the Glorious Revolution themselves, overthrowing King James’ governors who, they believed, were going to establish “popery” and arbitrary government in America. They believed that they had vindicated the right to govern themselves by their assemblies just as Englishmen had established the supremacy of their Parliament in England. The British, on the other hand, never gave a direct answer to the question of whether colonial self-government was a right or a privilege. The charters and assemblies that James had dissolved were restored, but it was not clear whether this was a British gift or a colonial right. And for the next seventy years the British maintained their policy of salutary neglect, and the colonists continued to govern themselves. As long as no crisis brought the issue up, both sides were happy to let it alone.

In the meantime, the American colonists were developing a distinctly modern political culture. They certainly maintained a great many features of traditional political thought: acceptance of monarchy, hierarchy, and deference; a belief that it is government’s role to inculcate virtue and piety in the people; and a suspicion of democracy and faction or party. At the same time, American politics exhibited many traits of modern interest-group competition. With fifty perfect of adult white males enfranchised, the colonies were the most democratic polities in the history of the world. The popular branches of their legislatures were the dominant ones, able to control finances especially and to resist the royal governors. And these assemblies were often arenas for contests among a multitude of ethnic, cultural, religious, and economic groups. While the American Revolution would evoke the language of traditional republicanism, and while Americans would never be fully comfortable with partisanship, the latter was the prevailing trend in the 18th century. While these internal cleavages in American politics often threatened discord within and among the colonies, their common constitutional culture, expressed in their charters, institutions, traditions, and principles, united them more than these differences divided them.

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• Charles M. Andrews, The Colonial Period of American History, 4 vols. (1935-39).
• Matthew P. Andrews, The Founding of Maryland: Province and State (1933).
• Bernard Bailyn, The Peopling of British North America: An Introduction (1986).
• Bernard Bailyn, The Origins of American Politics (1970).
• Patricia Bonomi, Under the Cope of Heaven: Religion, Society, and Politics in Colonial America (1986).
• George A. Billias, ed. Law and Authority in Colonial American (1965).
• B. Katherine Brown, “Freemanship in Puritan Massachusetts,” American Historical Review 59 (1954).
• Robert F. Brown, Middle Class Democracy and the Rev in Massachusetts, 1691-1780 (1955).
• Wesley Frank Craven, The Colonies in Transition, 1660-1713 (1968).
• Wesley Frank Craven, New Jersey and the English Colonization of North America (1964).
• George M. Dutcher, “The Rise of Republican Government in the Untied States,” Political Science Quarterly 55 (1940).
• A. Roger Ekirch, “Poor Carolina”: Politics and Society in Colonial North Carolina, 1729-1776 (1981).
• David Hackett Fischer, Albion’s Seed: Four British Folkways in America (1989).
• David H. Flaherty, ed., Essays in the History of Early American Law (1969).
• Lawrence M. Friedman, A History of American Law (1973).
• Julius Goebel, Jr., History of the Supreme Court of the United States: Antecedents and Beginnings (1971).
• Jack P. Greene, Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of American Culture (1988).
• Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607-1788 (1986).
• James Henretta, “Salutary Neglect:” Colonial Administration Under the Duke of Newcastle (1972).
• Mary Jeane Anderson Jones, Congregational Commonwealth: Connecticut, 1636-62 (1968).
• Stanley N. Katz, “The Origins of American Constitutional Thought,” Perspectives in American History 3 (1969).
• Leonard W. Labaree, Conservatism in Early American History (1948).
• George Langdon, Jr., Pilgrim Colony: A History of New Plymouth, 1620-91 (1966).
• Lawrence W. Leder, America, 1603-1789: Prelude to a Nation (1972).
• David S. Lovejoy, The Glorious Revolution in America (1972).
• Donald S. Lutz, The Origins of American Constitutionalism (1988).
• Donald S. Lutz, Colonial Origins of American Constitutionalism: A Documentary History (1998).
• Perry Miller, The New England Mind: From Colony to Province (1953).
• Samuel Eliot Morison, Builders of the Bay Colony (1930).
• William E. Nelson and Robert C. Palmer, Liberty and Community (1987).
• Herbert L. Osgood, The American Colonies in the Seventeenth Century, 3 vols. (1904-07).
• Herbert L. Osgood, “The Corporation as a Form of Government,” Political Science Quarterly 11 (1896).
• Herbert L. Osgood, “The Proprietary Province as a From of Government,” American Historical Review 2 (1897).
• Herbert L. Osgood, “The Political Ideas of the Puritans,” Political Science Quarterly 6 (1891).
• J.R. Pole, Political Representation in England and the Origins of the American Republic (1966).
• John E. Pomfret, Founding the American Colonies, 1583-1660 (1970).
• Robert C. Ritchie, The Duke’s Province: A Study of New York Politics and Society, 1664-91(1977).
• Clinton L. Rossiter, Seedtime of the Rep (1953).
• Ellis Sandoz, ed., The Roots of Liberty: Magna Carta, Ancient Constitutionalism, and the Anglo-American Tradition of Rule of Law (1993).
• Max Savelle, Seeds of Liberty: The Genesis of the American Mind (1948).
• Barry Alan Shain, The Myth of American Individualism: The Protestant Origins of American Political Thought (1994).
• Frederick B. Tolles, Meeting House and Counting House: The Quaker Merchants of Philadelphia, 1682-1763 (1948).
• Clarence L. Ver Steeg, The Formative Years, 1607-1763 (1964).
• Stephen Saunders Webb, The Governors-General: The English Army and the Definition of the Empire, 1569-1681 (1979).
• Benjamin F. Wright, Jr., American Interpretations of Natural Law (1931).
• Esmond S. Wright, The Search for Liberty: From Origins to Independence (1995).

III: The Revolution and the Constitution, 1763-89

The long period of “salutary neglect,” in which Great Britain largely left the colonies to govern themselves, came to an end in 1763. Britain defeated France in the Seven Years War (known as the French-Indian War in America), and acquired an immense North American empire, the problem of administering it, and an enormous war debt. As Englishmen on the two sides of the Atlantic grappled with their new situation, they entered upon a long chain of mutual misunderstandings and recriminations. Within a decade, the British came to see a set of rebellious ingrates. The Americans discerned nothing less than a tyrannical plot to enslave them. All of this brought to light the divergent political and constitutional development of the two sides that had been ignored over the previous century.

Britain’s policy got off to a bad start with the Proclamation of 1763, which forbade the colonists from settling beyond the crest of the Appalachian Mountains. The British feared that aggressive, land-hungry Americans would provoke Indian wars, and wanted to restrain them until they could guarantee military security and civil order. In the American perspective, what was the use of having expelled the French from North America if British Americans could not take advantage of it? Throughout the imperial conflict and for decades after—indeed, up to the American Civil War—the question of the organization and settlement of the vast American West was a paramount problem.

Further aggravating the situation was the British intent to maintain a regular army in America to police the frontier. This raised the specter of “standing armies in time of peace” that was now deeply embedded in the imagination of Anglo-Americans. Moreover, the unwillingness of the British to leave police work to the colonial militia showed the contempt with which the Mother Country viewed the colonial contribution to the recently-concluded war—a contempt which would also lead them to underestimate colonial capacity during the War for Independence, and which was part of the general condescension of the British toward colonial culture.

In addition to an army, the British realized that they would have to establish a more effective administration in the colonies, one that was not dependent, as the royal governors were, on appropriations from the tight-fisted colonial assemblies. They sought to establish a “civil list” of reliable imperial officers. Americans also came to believe that, along with the army and bureaucrats, the British would impose bishops of the Church of England. In theory, the Church of England was the established church in most American colonies; in fact, without bishops, the colonists governed their local churches just as they governed their local governments. Although there were no serious plans to send one, there was probably more alarm and ink spilled over the prospect of an Anglican bishop than over any other issue.

All of these plans would take money, and the conflict erupted as Parliament began to try to get it out of the colonists. The first attempt was the Sugar Act of 1764—a tax on molasses from foreign colonies, molasses being the main ingredient in the American manufacture of rum. The Act in fact lowered the duty on imported molasses, which heretofore American importers had evaded by bribing British customs officials. But the ministry expected to collect a greater revenue at the lower rate. What alarmed the colonists was the purpose of the act. It was not merely an effort to regulate imperial trade, part of the general mercantilist policy pursued by European Empires; rather, it was an attempt to raise revenue, which the colonists believed could not be done without the consent of their assemblies. (Ironically, after the American Constitution gave Congress the power to tax imports, opponents of tariffs would argue just the opposite: that tariffs could be for revenue only, and not to protect domestic manufacturing.) As well, offenders against the law (smugglers) would be prosecuted in Vice-Admiralty courts. These were royal “prerogative courts” that did not follow the rules of common law nor provide jury trials. Americans shared the English belief that non-common law courts were hostile to liberty. In addition, the nearest one was in Halifax.

Parliament’s Stamp Act of 1765 provoked an explosive reaction. It required the payment of a duty for nearly every printed document—newspapers, legal deeds, college diplomas, even playing cards. It was in no way connected to imperial trade; it was an “internal tax” designed to raise revenue. It also fell most heavily upon the most vocal, articulate, and politically active colonists: lawyers and publishers. The British ministry was utterly unprepared for the colonial reaction (as was Benjamin Franklin, the agent for several American colonies in London, who hoped to profit by being a stamp tax collector). Colonists published numerous resolutions and remonstrances against the act, and sent delegates to a Stamp Act Congress, the first effective continental congress. Most important, they organized an economic boycott, refusing to purchase British goods.

As a result of the boycott, English merchants persuaded a new Whig ministry to repeal the Stamp Act in 1766. At the same time, Parliament enacted the Declaratory Act, entitled “An Act to Better Secure the Dependency of His Majesty’s Dominions in America Upon the Crown and Parliament of Great Britain.” It emphatically declared that the King-in-Parliament “had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.” In a sense, the whole issue of the imperial conflict rested on this point: sovereignty. In the decades since the Glorious Revolution, the British had come to reject the idea of government limited by higher law. The British remained committed to the political outcome of the Glorious Revolution--the supremacy of Parliament—but overlooked the principles behind it, articulated in the Bill of Rights and Locke’s Second Treatise. William Blackstone signaled this change in his Commentaries on the Law of England. This monumental work of jurisprudence, as widely read in America as in Britain, appeared in the same year as the Stamp Act. In it, Blackstone asserted, “The power and jurisdiction of Parliament [is so] transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. It hath sovereign and uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing reviving, and expounding of laws, concerning matters of all possible denominations--ecclesiastical, or temporal, civil, military, maritime, or criminal: this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms.” If there were natural rights, there was no power above Parliament to define or protect them. This was the spirit of the Declaratory Act, and came close to a complete rejection of constitutionalism.

The Americans, on the other hand, adhered to seventeenth-century constitutionalism and rejected the notion of sovereignty altogether. Boston lawyer James Otis illustrated this when he argued against the Writs of Assistance in 1761. Writs of Assistance were general search warrants, which gave the King’s agents unlimited power to seek out violations of the customs laws. The writs ran in the King’s name, so had to be renewed when George III ascended the throne in 1760. Otis made the case that they were contrary to fundamental principles of justice and violated the rights of Englishmen. “It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book,” Otis claimed. He described it as “a kind of power, the exercise of which in former periods of history cost one king of England his head and another his throne.”

Otis referred to a 1610 decision by Edward Coke the great common law judge and parliamentarian, a leader in the resistance against Stuart absolutism. “In many cases the common law will control the laws of Parliament, and sometimes it will declare them totally void, for when an act of the Parliament is contrary to the law and reason, or incompatible, or impossible to execute, the common law will control it and proceed to declare its nullity.” Otis’ appeal to natural law principles made an impression on another Massachusetts lawyer, John Adams. Though the Americans would appeal to natural rights only as a last resort, preferring to rely on the more concrete bases of their colonial charters and traditional rights as Englishmen, the law of Nature and of Nature’s God always lay behind their resistance to parliamentary sovereignty.

After the repeal of the Stamp Act, the British tried new taxes on imports, on the mistaken assumption (sowed in part by Benjamin Franklin) that the colonists would accept “external taxes.” The Americans refused to pay any duty whose aim was to raise revenue, imposed upon them “without their consent.” The British denied the colonists were being taxed without their consent. Colonists, they said, were represented “virtually” by every member of Parliament. Members of the House of Commons did not represent particular districts, constituencies, or electors; rather, each represented the whole Empire. Americans might not vote for members of Parliament, but neither did nine-tenths of Englishmen. The Americans rejected this concept of “virtual representation.” The interests of one part of England might be represented by a member of Parliament from another part of England, but no Englishman could fairly give the consent of colonists three thousand miles away in hugely different circumstances. This system might be satisfactory to the English, but the Americans were more accustomed to a system of “actual representation,” where the franchise was broad and representatives close to the voters. This is not to say that the colonists rejected the idea of virtual representation altogether: women, children, and propertyless males could be said to be virtually represented by colonial voters. But they had taken a step toward a more fully democratic idea of representation in their rejection of British policy.

Nor did the colonists seek representation in the British Parliament, where they would be outnumbered by British members, in addition to the difficulty of representation across an ocean that still required six weeks to cross at best. In the early stages of the imperial conflict, the Americans tried to limit parliamentary authority to particular, imperial ends—regulation of trade, most notably. This idea, known as the “federal theory of empire,” clashed with the British idea of parliamentary sovereignty, for sovereignty was by definition unlimited and indivisible. The federal theory posited the logically impossible situation of two sovereigns in the same space—an imperium in imperio, or empire within and empire. Thus, the Americans resorted to what was known as the “dominion theory of empire,” wherein their only connection to the British was through the King, to whom each colonial assembly was equal to the London Parliament. There was a logic to this theory, since all the colonial charters had been granted by the King, though historically Parliament had participated in colonial regulation and the Americans had accepted it. The dominion theory was a red flag to English Whigs, for it undermined parliamentary supremacy and might give the King new sources of power in the Empire. But George III remained firmly committed to parliamentary supremacy, and never responded to this temptation. The colonists persisted in this theory, eventually claiming that Parliament had never possessed any legitimate power over the colonies. They had submitted to parliamentary imperial regulations only as a matter of convenience and expediency, but never as a right. Thus the Declaration of Independence is addressed only to the King, and does not even mention Parliament by name.

Economic pressure from the colonies continued to limit British policy, and Parliament repealed all of the new duties except the one on tea by 1773. In that year the ministry, combining an effort to assist the East India Company with its attempt to raise colonial revenue, gave the company a monopoly on tea sales in the American colonies. Radicals in Boston dumped the company’s tea into Boston Harbor in the famous “Boston Tea Party” of December, 1773. Push now came to shove in a sustained way. Parliament responded to the Tea Party with a series of measures known as the Coercive or Intolerable Acts. Most important, they closed the Port of Boston, made General Thomas Gage the governor, and placed severe restrictions on colonial and local self-government.

Along with these acts, Parliament passed the Quebec Act, to organize the North American territory won from France in 1763. It included in the colony of Quebec all of the land north of the Ohio River. It provided no representative assembly (the French inhabitants had never had one), and allowed the colonists to support the Roman Catholic Church. It also continued French civil law, though it imposed the English common law of crimes. Though unrelated to the Coercive Acts, it appeared to the colonists as part of that punitive effort and a further step in the conspiracy to destroy their liberties. It touched the most passion-provoking of issues, religion. It evinced a pattern of continental absolutism, of “popery and arbitrary government.” In the colonial imagination, they were fighting the English Civil War or Glorious Revolution all over again, defending representative government and Protestantism. Many in the British government saw it likewise—the Massachusetts rebels being the very descendants of the republicans and Puritans who had decapitated Charles I.

But there was deep support for Massachusetts outside of the colony. In September, 1774, colonies sent delegates to the First Continental Congress. They rejected Pennsylvanian Joseph Galloway’s proposal for an explicit constitutional definition of the Empire. Galloway’s plan sketched a federal system, in which each colony would retain “its present constitution and powers of regulating and governing its own internal police.” For common, imperial matters, it envisioned a President General, appointed by the King, and a Grand Council, chosen by the colonial legislatures. Their body was to be “an inferior and distinct branch of the British legislature,” whose acts would require the assent of Parliament. Instead, the Congress endorsed the grievances of the Bostonians (the Suffolk Resolves), and adopted a continental statement of colonial complaints and rights. The Congress repeated the many grievances of the colonists and the grounds for their rights that had been developing over the past decade. They claimed a right to self-government, particularly consent to taxation, as a natural and God-given right, as their right as Englishmen, and explicitly stated in their colonial charters. In addition, Congress claimed that the toil and sacrifice of their ancestors, who had founded the colonies, gave them a title to self-rule. They complained of the statement of parliamentary sovereignty in the Declaratory Act, of the recent Intolerable Acts, the Quebec Act, and of the curtailment of legislative and judicial independence. But they abjured any desire for independence and claimed to act only in self-defense.

Even after armed conflict began in April, 1775, the Americans were reluctant to take the step to independence. In July the Second Continental Congress issued the “Declaration of the Causes and Necessity of Taking Up Arms,” while simultaneously appealing to the King in the “Olive Branch Petition,” on the belief that George III was being misled by wicked ministers. But the King and ministry were united to settle the controversy by force. Over the winter of 1775-76 a series of atrocities by British troops, together with the radical argument of Thomas Paine in his best-selling pamphlet, Common Sense, shifted American sentiment toward independence as well as toward republican government.

In the summer of 1776, realizing that they could not successfully defend their rights without foreign (particularly French) assistance, and that no foreign power would assist unless they declared independence, the Congress appointed a committee to draft a declaration. This document is the cornerstone of American national identity and the foundation of the Constitution. Thomas Jefferson, the principal draftsman of the declaration, claimed that he had written nothing original, but merely expressed “the common sense of the subject” among his contemporaries. In a sense, this was no undue modesty; the Declaration of Independence was largely a reprise and extension of earlier colonial statements. It is addressed to all mankind, and begins its argument with an appeal to the rights of man. In its most famous part, the second paragraph, it reiterates the theory of natural rights, largely from John Locke. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” It asserts the right to revolution when a people suffer tyrannical government, and denounces “the present king of Great Britain” as such a tyrant.

The bulk of the Declaration, usually overlooked, is a list of specific grievances, complaints that the King has violated not only the natural rights of the colonists, but the particular, historical rights of Englishmen. Most of these had to do with the abuse of executive power by the King and his governors, subordinating the rights of colonial legislatures and judiciaries. In keeping with the Dominion Theory of Empire, the Declaration does not so much as mention Parliament by name, instead noting that the King “has combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation.” Several acts of Parliament were then denounced, summarized in the Declaratory Act. It also called attention to concrete rights expressed in their charters, as well as “the circumstances of our emigration and settlement here,” the other commonly cited sources of colonial rights.

Next, the Declaration condemns the recent atrocities of the King’s armed forces— the burning of Norfolk, Virginia and Falmouth (today Portsmouth, Maine). The Declaration also denounced Virginia Governor Dunmore’s promise to slaves that they would gain their freedom if they rose up against their masters (euphemistically put, “He has excited domestic insurrections amongst us”), and the use of mercenaries and Indians—“the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions.” Jefferson’s original draft of the Declaration contained a bold attack on the institution of slavery, attempting to blame the English government for imposing it on the colonists, but this was edited out by the Congress.

Finally, the Americans lament that their appeals to their erstwhile English brethren have gone unnoticed, and that the American people, now “free and independent states,” would regard the English “as we hold the rest of mankind, enemies in war, in peace, friends.” The Declaration of Independence was a kind of social contract for the American people, a statement of fundamental principles of right and justice. But it did not provide a form of government, nor answer the question of what the colonies’ relations to one another would be. It declared the creation of “one people,” yet announced them as “free and independent states.” The “imperial question” of the relationship of the colonies to Britain would now become the “federal question” of their relationship to one another.

The Continental Congress now directed the states to revise their constitutions in accord with their new condition of independence, and also began to consider a continental constitution. The years from 1776 to 1789 were the greatest constitution-making period in human history.

The starting point for the state constitution-makers was republicanism. Republicanism had a broad range of meanings, but at the fundamental constitutional level it meant a government that derived its powers solely from the people, without any aristocratic or monarchical elements. Eighteenth century political science regarded pure republics as unsound: they were prone to faction and demagoguery, volatile and ephemeral. As ancient models of the Greeks showed, they rapidly consumed themselves in civil war or became prey to foreign powers. The fatal problem of republics was that they depended on the virtue of the people—their willingness to sacrifice their private interests for the public good. But the bold step toward independence caused the Americans to undertake a new experiment in republican government. The English constitutional model of mixed government, composed of King, Lords, and Commons, was now denounced as the source of the corruption and oppression from which they had escaped. The flush of revolution convinced many Americans that they possessed the virtue that could make republican government succeed.

In accord with republican principles, states made their constitutions more responsive to the people. The most radical of them, Pennsylvania’s, did away with its upper house and relied on a unicameral legislature. They broadened the suffrage, lowering property qualifications. By the end of the century, Maryland became the first polity in history to provide universal male suffrage; even women (with property) could vote under New Jersey’s revolutionary constitution, which made no sex qualification. Annual elections would keep legislators in touch with the people, and legislatures were reapportioned to make representation more equal. Governors had fewer powers, being seen as monarchical. Pennsylvania’s constitution provided for a plural executive, a committee of delegates from each county. Rejecting the theory of “mixed government,” the state constitutions strove for “separation of powers,” wherein the executive would not influence legislation, for this was the mechanism of corruption in the English system. Not every state went as far as Pennsylvania—Connecticut and Rhode Island, for example, simply removed references to the King from their seventeenth century corporation charter and carried on as usual. But there was on the whole a democratic tendency in the revolutionary era.

Politics under the state constitutions confirmed many of the historical fears of republican government. The fundamental problem was that the legislatures possessed overwhelming power and began to act in an unrestrained fashion. As James Madison put it in Federalist 48, “The legislative department is everywhere extending the sphere of its authority and drawing all power into its impetuous vortex.” Legislatures were unchecked by the state constitutions, because they had written them themselves. Before the Massachusetts constitution of 1780, there was an imperfect sense that a constitution was a “higher law,” the work of the people, created outside of, and superior to, the legislature. In several cases where state judges attempted to protect rights against legislative encroachment—usually involving judicial process and jury trials—they were intimidated by overweening legislators. The most common abuse by legislative power involved property rights. The United States endured an economic depression after the War for Independence, and there was pressure from distressed debtors for relief. The legislatures responded with a variety of devices, inflationary paper money laws especially, that many regarded as violations of private, contractual rights and attempts to use force of numbers to redistribute the wealth. More generally, the laws of the states changed rapidly, sensitive to shifts in public opinion, and this further undermined the security of private rights.

At the same time, the national or continental government was even more defective. The Articles of Confederation were not ratified until 1781. While not completely feckless—it was able to arrange the Treaty of Paris in 1783 and the Northwest Ordinance in 1787—its main value was to provide an object lesson and experience for later constitution-makers. If the main defect of the state constitutions was that they were too close to the people, the Articles’ main weakness was that it was not connected to the people at all. In short, it was not a genuinely republican government, and therefore lacked the essential element of legitimacy. Rather, the Articles established what it called “a firm league of friendship” among the states. The document was entitled “Articles of Confederation and Perpetual Union,” implying unity, but was formed “between the states of New Hampshire, Massachusetts Bay, Rhode Island….,” emphasizing their independence. Article 2 stated quite clearly, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States.”

The state legislatures chose and controlled the delegates to the Congress, and each state had equal voting power. The powers surrendered by the states and granted to Congress principally involved diplomacy, but there was no real basis for national power. The Congress lacked any revenue of its own; it could only request money from the states, and relied on the state to collect the requisitions. Its executive was amorphous; a committee of delegates had power to act when the whole Congress was not assembled. It provided for a complicated judicial process to settle disputes among states, but it was never used. Most important decisions required the assent of nine of thirteen states, and amendment required the unanimous consent of all state legislatures.

Consequently, paralysis usually characterized the government. The weakness of the Confederation made it impossible for the United States to “assume among the powers of the earth the separate and equal station to which the laws of Nature and of Nature’s God entitle them.” It was unable to pay its debts. It could not compel the British to fulfill their promises under the Treaty of Paris, in part because it could not compel the states to fulfill theirs. Nor could the Congress secure a commercial treaty with Britain, nor prevent Spain from using its control of the Mississippi River against the Untied States. It was similarly powerless to stop the states from discriminating against one another in commerce. In the winter of 1787, debtor farmers in the western part of Massachusetts broke out in rebellion (Shays’ Rebellion)—largely because the state constitution of 1780 did not produce the kind of legislative populism seen in other states—and the national government could render no assistance.

By this time there was considerable sentiment for serious constitutional reform. There was widespread consensus that the Articles needed strengthening for the sake of national unity and independence. Several states had already undertaken constitutional reforms: the Massachusetts constitution of 1780 provided an alternative to the radical republicanism of earlier constitutions. The devices of “mixed government,” called “checks and balances” in a republican setting, made a comeback. The value of bicameralism as a means of improving legislative deliberation and the utility of gubernatorial power also increased. In several states, judges attempted to hold legislatures to the written constitution, in cases that presaged judicial review. Massachusetts introduced the important feature of a special constitutional convention, a body of delegates elected by the people to draft the constitution, apart from the legislature, and a convention to ratify the document.

After an effort by several states to negotiate common rules for commerce on the Chesapeake Bay, the Continental Congress called for all of the states to send delegates to a Philadelphia Convention to devise “alterations and provisions [to the Articles] as shall… render the federal Constitution adequate to the exigencies of government and the preservation of the Union.” Twelve states (Rhode Island demurred) sent fifty-five delegates who began work in May of 1787.

The agenda was set by the Virginia delegation, which proposed a set of resolutions that would have radically consolidated national power. It included a bicameral legislature, in which representation in both houses would be apportioned according to population. It would have power “to legislate in all cases to which the separate states are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation; to negative all laws passed by the several states… and to call forth the force of the Union against any member of the union failing to fulfill its duty under the articles thereof.” It provided for a parliamentary executive, chosen by the legislature, and a council of revision, to include the executive and national judges, to review acts of Congress. It called for a higher authority, outside of the Congress, to enact future amendments, and proposed that the people in special conventions should ratify the amendments that they proposed.

Delegates from the less populous states knew that such a plan could never be accepted back home, and so made a counter-proposal, known as the New Jersey Plan. Rather than the sweeping grant of legislative power that the Virginians sought, it granted specific powers to the old Confederation, specifically that of raising revenue by tariffs. Most important, it would retain the equal power of states in the national legislature. The genuine desire of the small-state men for a real national government was evident in their sixth resolution, that “all acts of the United States in Congress… and all treaties made and ratified under the authority of the United states, shall be the supreme law of the respective states… and that the judiciary of the several states shall be bound thereby in their decision, any think in the respective laws of the individual states to the contrary notwithstanding,” and allowing the national executive to use armed force to compel recalcitrant states or individuals. This would be incorporated into the Constitution as the “supremacy clause,” one of the most important bases of national power.

The question of the structure of the national legislature provoked the widest disagreement at the convention. The populous states sought a legislature elected directly by the people, apportioned by population. The small states wanted what the Articles of Confederation provided, equal state representation chosen by the legislatures. The deadlock was broken by the Great Compromise. The House of Representatives reflected the wishes of the large states, being elected by the people according to population. The Senate was essentially the old Confederation Congress—equal state representation chosen by the state legislatures. This was the primary foundation of the Constitution as a federal system. With the lower house elected directly by the people, the new government was now genuinely republican, and thus promised to be more effective. Bicameralism would provide for more mature and deliberate consideration than in the annually elected state legislatures. Senators especially, with six-year terms and indirect election, would be insulated from public opinion. Moreover, the interests of the states would be protected by the upper chamber.

The Congress was granted a number of specific powers in Article I, section 8, including the power to tax and to regulate interstate commerce. Some were pointedly specific, such as the power “to provide for the punishment of counterfeiting the securities and current coin of the United States.” But it was also granted the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers”—the so-called “elastic” or “necessary and proper” clause. The question of how strictly the enumerated powers should be read would be a crucial issue in the ratification debate, and for years thereafter. While certain powers were explicitly withheld from Congress in Article I, section 9, the implication of the document was that all powers not granted in the Constitution were withheld. The states, on the other hand, gave up specific powers in Article I, section 10—the usual ones having to do with foreign policy, but also the power to “make anything but gold and silver coin a tender in the payment of debts” and to “pass any law impairing the obligation of contracts,” in order to curtail state violations of property rights. Here the implication was that states reserved all powers not granted to Congress or foresworn by the states in the Constitution. In other words, the states remained general governments, with the “police power”—the general power to legislate on matters of safety, health, welfare, and morals. The national government’s powers were limited to the ends and objects specified in the Constitution. This would be reiterated explicitly in the Tenth Amendment.

Several specific policy matters produced compromises in the document. States wary of Congress’ power over imports and exports allowed it to impose tariffs by a simple majority vote, but won a prohibition on taxes on exports. Treaties required a two-thirds vote in the Senate for ratification. Slavery posed several moral and political problems for the convention. Antislavery men were reluctant to recognize the institution, and thus the words “slave” and “slavery” were not used in the Constitution. Slaves were referred to as “persons held to service or labor in one state, under the laws thereof.” Congress was forbidden to end the international slave trade for twenty years, a provision that was unamendable before then. The enumeration of slaves for purposes of representation and taxation posed another problem. Northerners would have liked to count them for taxation but not representation, while southerners would have liked to count them for representation but not taxation. In the end, five slaves were counted as three persons when representation in the House and direct taxes were apportioned. This provision greatly augmented the power of the slave states and did them no harm, since direct taxes were almost never levied--the southern states gained extra representation, but never paid extra taxes, on account of their slaves. Finally, the Constitution provided that fugitive slaves would be returned to their owners, although it did not specify how or by whom the return would take place. The antislavery framers of the Constitution believed that slavery was a declining institution, and that the problem would take care of itself. In the meantime, they made what compromises they must in order to keep the union together, lest the hope of liberty for anyone be lost.

The Constitution provided for a strong executive--a single president, with power to veto bills, make appointments, and issue pardons. He was to serve a four-year term, could be re-elected without limit, but could be impeached and removed by Congress. The chief problem regarding the office was the mode of selection. Thus Article II outlined a complex process where the president would be elected indirectly, by an electoral college, a body of men chosen however the state legislatures might direct. The college was also a federal institution, weighted to give more power to the smaller states. If anyone failed to garner a majority of electoral votes, the president would be chosen by the House of Representatives. This process was even more federalized than the electoral college, with each state casting one vote. And it was widely expected that, after George Washington, few men would be able to win wide enough support to be elected by the college, and that most would be chosen by the House. National political parties eventually made regular first-ballot elections the norm. The Constitution provided for a separate and independent judicial branch. It provided for a Supreme Court, and “such inferior courts as Congress may from time to time ordain and establish.” The justices and judges would be appointed by the President, with the approval of the Senate; they would enjoy life tenure “during good behavior,” and their salaries could not be reduced. Article III offered a potentially enormous grant of judicial power, defining the jurisdiction of the federal courts as extending “to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made under their authority,” including all controversies between citizens of different states. On the other hand, the composition of the lower courts was left entirely to Congress—it might ordain and establish none at all. The Constitution also narrowly limited the original jurisdiction of the only court that it required (the Supreme Court), and allowed Congress to control its appellate jurisdiction. There was thus a vast range between the potential power of the federal judiciary and the actual power that Congress might grant.

The convention also provided an amendment process. Two thirds of the Congress or two-thirds of the states could propose amendments, which would be ratified by three-fourths of the states, either by legislatures or by special conventions. All amendments turned out to be proposed by Congress, and all but one (the Twenty-First) ratified by the legislatures. This provision was particularly important because it allowed the advocates of the Constitution (the Federalists) to assuage their opponents (the Antifederalists) by promising that defects in the document could be amended. This was especially useful with regard to the Antifederalist complaint that the Constitution lacked a Bill of Rights.

When the convention finished its work in September, 1787, it submitted the document to the Confederation Congress. If there was any merit to the charge that the convention had acted illegally, writing a whole new Constitution instead of simply amending the Articles, it made little impression on the Congress whose powers the convention had allegedly usurped. The Congress submitted the document to the state legislatures, who had the option of calling for ratification conventions to approve it. Every state legislature but Rhode Island did so and all but one of these conventions (North Carolina) ratified the Constitution within a year.

The most serious complaint by the Antifederalists was that the United States was too vast a territory to be governed as a republic. Republics had to be small and relatively homogenous, with their governments close to the people. A country like the United States could only be ruled as an empire. If the Antifederalists had won this argument, the Constitution would have been defeated, for republicanism remained the touchstone of American politics in 1787. But James Madison explained that the size of America would actually improve republican government. In Federalist 10, Madison argued that the great defect of republics was faction, or self-seeking interest groups, and majority tyranny, as seen in many American states. Tyrannical majorities were more easily assembled in small settings; it would be much more difficult to put together a majority faction in a larger country. “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probably that a majority of the whole will have a common motive to invade the rights of other citizens,” he wrote. “In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.” Much in the same way that Madison saw religious pluralism preventing sectarian oppression, or in the way that Adam Smith saw self-interested economic behavior making everyone more prosperous, Madison argued that the vices of republicanism could be turned against themselves for the common good. And the American political system, if it could not dispense with the need for public virtue altogether, at least would depend on it to a less dangerous degree. Madison’s argument underscored the fact that America would be a modern, liberal, commercial republic.

In the Federalist Papers and other local venues of debate, the Federalists were able to convince the people that the Constitution would provide a government strong enough to protect rights, but not so strong as to overwhelm them. They also promised that the First Congress would propose a Bill of Rights to amend the Constitution. The Federalists on occasion had to resort to strong-arm tactics, as in getting the Pennsylvania legislature to call a ratification convention, and it is true that only a minority of American adults could vote for delegates to the conventions, but the United States Constitution was the most democratically debated and ratified national document in the history of the world to that point. For behind the debate were deeply held national principles that united Federalist and Antifederalist, and enabled the parties to work together after the ratification conflict. These principles had developed out of English seeds and grown in colonial soil before the Revolution. They flowered in the Declaration of Independence and state constitutions, and the Constitution is best understood as pruning and preserving them.

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• Douglas Adair, “That Politics May Be Reduced to a Science: David Hume, James Madison, and the Tenth Federalist,” Huntington Library Quarterly 20 (1957).
• Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (1980).
• Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1991).
• Charles M. Andrews, “The American Revolution: An Interpretation,” American Historical Review 31 (1926).
• Charles M. Andrews, The Colonial Background of the American Revolution: Four Essays in American Colonial History (1958).
• Hadley Arkes, Beyond the Constitution (1990).
• Bernard Bailyn, The Ideological Origins of the American Revolution (1967).
• Bernard Bailyn, “The Central Themes of the American Revolution,” in Essays on the American Revolution, ed. Stephen G. Kurtz and James H. Hutson (1973).
• Carl L. Becker, The Declaration of Independence (1922).
• Richard Beeman et al., eds., Beyond Confederation (1987).
• Daniel J. Boorstin, The Genius of American Politics (1953).
• Edward S. Corwin, “The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention,” American Historical Review 56(1969).
• Martin Diamond, “The Separation of Powers and the Mixed Regime,” Publius 8 (1978).
• John P. Diggins, The Lost Soul of American Politics: Virtue, Self-Interest, and the Foundations of Liberalism (1984).
• Stanley Elkins and Eric McKitrick, “The Founding Fathers: Young Men of the Revolution,” Political Science Quarterly 76 (1961).
• David F. Epstein, The Political Theory of ‘The Federalist’ (1984).
• Edward J. Erler, “The Problem of the Public Good in The Federalist,” Polity 12 (1980).
• Max Farrand, ed., The Records of the Federal Convention of 1787, 4 vols. (1911-37). Lawrence Henry Gipson, The British Empire Before the Revolution, 14 vols. (1936-38).
• Merrill Jensen, The American Revolution Within America (1974).
• Cecilia Kenyon, “Men of Little Faith,” William and Mary Quarterly 12 (1955).
• Ralph Lerner, the Thinking Revolutionary: Principle and Practice in the New Republic (1987).
• Michael Lienesch, New Order of the Ages: Time, The Constitution, and the Making of Modern American Political Thought (1988).
• Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (1980).
• Pauline Maier, American Scripture: Making the Declaration of Independence (1997).
• Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-76 (1972).
• Jackson Turner Main, The Antifederalists (1961).
• Frederick W. Marks III, Independence on Trial: Foreign Affairs and the Making of the Constitution (1973).
• Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985).
• Andrew C. McLaughlin, “The Background of American Federalism,” American Political Science Review 12 (1918).
• Andrew C. McLaughlin, The Confederation and the Constitution, 1781-89 (1905).
• Charles H. McIlwain, The American Revolution: A Constitutional Interpretation (1922).
• Edmund S. Morgan, The Birth of the Republic, revised ed. (1977).
• Richard B. Morris, The Forging of the Union, 1781-87 (1987).
• Charles F. Mullett, Fundamental Law and the American Revolution, 1760--76 (1933).
• Allan Nevins, The American States During and After the Revolution, 1775-89 (1924).
• Alison G. Olson, “Parliament, Empire, and Parliamentary Law, 1776,” in Three British Revolutions: 1641, 1688, and 1776, ed. J.G.A. Pocock (1980).
• Peter S. Onuf, Statehood and Union: A History of the Northwest Ordinance (1987).
• Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke (1988).
• John Phillip Reid, The Constitutional History of the American Revolution, abridged ed. (1995).
• Jack N. Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress (1979).
• John P. Roche, “The Founding Fathers: A Reform Caucus in Action,” American Political Science Review 55 (1961).
• M.J.C. Vile, Constitutionalism and the Separation of Powers, revised ed. (1998).
• Thomas G. West, Vindicating the Founders: Race, Class, Sex and Justice in the Origins of America (1997).
• Morton White, The Philosophy of the American Revolution (1978).
• Gordon S. Wood, The Radicalism of the American Revolution (1992).
• Gordon S. Wood, The Creation of the American Republic, 1776-87 (1969).
• Michael P. Zuckert, “Federalisms and the Founding,” Review of Politics 48 (1986).

IV: The Early National Period

The new government faced and adjusted to several major challenges through the first half of the nineteenth century. Almost simultaneous with the ratification of the Constitution, the French Revolution began. The twenty years of warfare generated by the revolution influenced American politics, finally drawing the United States into another war with Great Britain in 1812. At the same time, the domestic program of the Federalists sparked partisan controversy. After the often bitter political contentions of the 1790s, the US in 1800 was able to transfer power from one party to another. The new republic also provided an unprecedentedly strong and independent judiciary under Chief Justice John Marshall. Finally, the US developed the first mass democratic political system in world history, with nearly universal white male suffrage, together with a modern party organization to manage it. But slavery was the one issue that was beyond the political and constitutional capacity of the American to resolve peacefully.

When the First Congress convened in 1789, the Federalists kept their promise to propose a Bill of Rights as amendments to the Constitution. Though today most Americans regard the Bill of Rights as the shield of individual liberty, this was not the main concern of those who demanded the amendments. Antifederalists wanted a Bill of Rights was to preserve state power, not individual rights. Their chief concern was federalism. They were concerned less with the substance of rights than the procedural matter of who would define and regulate rights. James Madison proposed that the Bill of Rights apply to the states as well as to the federal government, but the Senate did away with this provision. Thus the First Amendment reads, “Congress shall make no law respecting an establishment of religion….” States were free to do so—Massachusetts maintained an established church until 1833. It was not until the 1920s, by way of the Fourteenth Amendment, that the Bill of Rights began to restrict the states. And some of its provisions, most notably the Second Amendment, have not been applied to the states. Since the federal government seldom abridged the rights enumerated in the Bill of Rights, they were of little constitutional significance until well into the twentieth century.

George Washington, elected unanimously as the first president, went a long way toward establishing the vigorous but limited executive envisioned by the Federalists. Washington took seriously the idea that the president should be above partisanship, and drew upon widespread admiration of him as the embodiment of republican virtue. He asserted presidential power over executive personnel, particularly in the removal of executive officers—a point upon which the Constitution was silent apart from impeachment. But Washington was on the whole deferential to the legislature, which showed itself jealous of its primary role in a republican constitutional system—after a long debate, the Congress decided that it would eschew monarchical titles and address the chief executive simply as “Mr. President.” He was more assertive in foreign policy, establishing the prerogative of the president to recognize foreign governments, to interpret treaty obligations, and to declare neutrality in the emerging wars of the French Revolution. He also defended the right of the president to maintain confidentiality in diplomatic negotiations—a custom later called “executive privilege.”

The principal opposition to the President arose from the plans of his Secretary of the Treasury, Alexander Hamilton. The Anglo-American tradition of keeping taxes close to the people was expressed in Congress’ requirement that the Treasury Department report to the legislature as well as to the president. Hamilton tried to use this connection as a means to act as Washington’s prime minister, to promote his plan of national economic development. Hamilton sought to develop the economy by establishing a national bank, funding the national debt and assuming state debts, a protective tariff, and infrastructure or “internal improvements.” He hoped to bind important economic interests to the new government and to strengthen national identity. His opponents, especially southern and states-rights men, objected that these policies—particularly a congressionally-chartered national bank—were beyond the powers granted by the Constitution. They feared that Hamilton sought to “influence” or corrupt the legislature in order to build up an urban-commercial elite, a parasitical “paper aristocracy,” at the expense of the independent yeomen farmers who alone possessed the virtue necessary for republican government. James Madison, Hamilton’s erstwhile nationalist ally, led the opposition in the House of Representatives, and Thomas Jefferson, Secretary of State, joined him. Their followers came to be known as “Republicans.” Hamilton was partially successful, but these issues of national mercantilism would continue to cause political and constitutional controversy for decades. Along with the partisan positions on the French Revolution—the Federalists favoring England and the Republicans France—Hamilton’s policies led Republicans to denounce the Federalists as monarchists, and the Federalists to accuse the Republicans of being Jacobins.

The crisis of the Federalist administration came during the term of John Adams, who had the confidence of neither the Jeffersonian opposition nor of Hamilton and his “high Federalist” allies. Adams did his best to keep the United States out of war with an increasingly hostile France, but the preparations that the Federalists made for war provoked a hostile public reaction. The most famous and constitutionally significant of these were the Alien and Sedition Acts, aimed at controlling the anti-administration views of pro-French elements in America and, more broadly, of the Jeffersonian Republicans. The Constitution gave Congress no power to punish seditious libel— speech or writing that brought the government into contempt or ridicule—the Jeffersonians argued; the Federalists claimed that there existed a common law of seditious libel, which the federal government could prosecute even without a statute. This was an alarming idea, for it suggested that Congress was not limited to the powers enumerated in Article I, section 8 of the Constitution, but might legislate on any matter of the common law. The Republicans also noted that the Sedition Act violated the First Amendment’s free speech and press provisions. But the Federalists interpreted “freedom of the press” to mean “no prior restraint”—that is, publications could not be censored, but slander and libel were punishable after publication. Moreover, the Federalists claimed that the act mitigated the common law of seditious libel, by making truth a defense against the charge, and allowing juries to determine guilt. President Adams had not sought but did sign the act, which was often vigorously enforced by Federalist prosecutors and judges.

Madison and Jefferson worked with the legislatures of Virginia and Kentucky to write protests against the acts, known as the Virginia and Kentucky Resolutions. Generally denouncing the Alien and Sedition Acts, the fundamental principle of the resolutions was that the Constitution was a compact among the states, not the work of the people of the United States. The states, not the federal government, were the ultimate arbiters when disputes arose about the extent of federal power. They declared that the states had the power to “interpose” against or “nullify” unconstitutional congressional acts, but did not specify how such action might be implemented. The first Kentucky Resolution noted that further abuses would “drive these states into revolution and blood,” and Jefferson privately sought an explicit threat to “sever ourselves from [the] union,” though Madison dissuaded him. However unpopular the Alien and Sedition Acts were, no other state legislature endorsed the Virginia and Kentucky Resolutions, and several condemned them.

Combined with new taxes to support a new army, the Sedition Act provided a platform for the Republicans in the election of 1800. They won large majorities in Congress, but the presidential election was very close. State legislatures still chose most electors and, while Jefferson probably would have won a popular-vote contest, the Republicans benefited from the extra electoral votes that the three-fifths clause gave to slave states, where the party was strongest. Moreover, the Republican electors gave an equal number of votes to Jefferson and Aaron Burr, which threw the election into the lame-duck Federalist House of Representatives. Regarding Jefferson as less radical than Burr, the House chose him. In 1804 the Twelfth Amendment provided that electors should cast separate ballots for President and Vice-President, making electoral college ties less likely.

Although intense partisan feelings led people to speak of the “revolution of 1800,” the transfer of power was not revolutionary at all. The Republicans brought to the capital a different constitutional emphasis—states-centered federalism, the state-compact theory of the union, legislative supremacy, strict construction of the Constitution—but did not change the nature of the government. Jefferson himself took pains to conciliate moderate Federalists—as he said in his inaugural address, “We are all Republicans; we are all Federalists.” Jefferson was a moderate Republican who wanted to put an end to partisan strife. Above all, circumstances and events led the Republicans to adopt many of the nationalist tactics of the Federalists.

While Jefferson managed Congress effectively in an informal manner as party leader, his public stance was deferential. He no longer appeared in person before Congress, and did not veto a single act of Congress. He removed few Federalist officeholders and, while the government retrenched taxing and spending, it did not dismantle the Federalist program altogether. Perhaps most important, Jefferson thwarted radical Republican attempts to remove Federalist judges and left the Federalist-dominated judiciary largely intact. The Republicans enjoyed continued electoral success, and the Federalist party never made a comeback.

Jefferson was fortunate to have taken office during a lull in the wars of the French Revolution, but Napoleon Bonaparte soon renewed conflict, and this posed great challenges to the Republicans. The first of these was Napoleon’s offer to sell the vast Louisiana Territory to the United States. Such an acquisition presented the opportunity to double the size of the county, to control the Mississippi River—of vital importance to western farmers—and to provide the space in which to build an agrarian-Jeffersonian “empire of liberty.” But the Constitution contained no provision for territorial purchase, and the impetuous French dictator might not wait for a constitutional amendment. Jefferson thus overcame his strict-constructionist scruples and agreed to a treaty in 1803.

With Great Britain and France at war again, the United States faced the problem of having the belligerents respect its trading rights as a neutral power. The Republicans attempted a number of economic sanctions to get them to do so. Toward the end of Jefferson’s second term, Congress enacted an embargo, forbidding Americans to export goods abroad. The Constitution gave Congress no power to embargo—indeed, the Federalists complained, a Constitution that forbade the taxation of exports could hardly allow for their prohibition. The policy was especially unpopular in New England, whose economy depended on foreign trade, and where it was regarded as a piece of spiteful sectional and partisan oppression. Jefferson regarded the New England merchants as devoid of republican virtue, more interested in profit than national honor, and resorted to treason prosecutions to enforce the act. Congress repealed it as Jefferson left office. His successor, James Madison, fared no better in getting the French and British to change their behavior, and in 1812 reluctantly asked Congress to declare war on Great Britain.

The war exposed many of the weaknesses of Republican policy, which had left the nation unprepared for war: largely bereft of an army and navy, unable to move the forces that it had, and with little money or credit (the Federalist Bank of the United Sates having expired in 1811). The nation was divided about the war, and opposition was intense in New England. State governments resisted the war and sent delegates to a convention at Hartford, Connecticut in 1814 to consider their grievances. Although there was informal talk of secession, the convention produced only a proposal for constitutional amendments that would limit the power of the South and West that northeasterners believed had led to a sectional war. While the proposals were arguably less disunionist than the Virginia and Kentucky Resolutions, they were seen as unpatriotic and led to the final destruction of the Federalist party.

Though the war went badly for the United States, Britain, exhausted by the European war, gave generous terms in the Treaty of Ghent to end hostilities. President Madison and the Republicans, realizing the dangerous effects of weak central government and full of postwar national enthusiasm, returned to Federalist policies that they had earlier denounced. Madison overcame his objections and agreed to a second Bank of the United States in 1816. Congress adopted the first protective tariff that year, to reduce America’s industrial dependency. But Madison drew the line at federally-sponsored internal improvements. And the ambitious and unbridled nationalism of John Quincy Adams, elected in 1824, caused a major political realignment and reassertion of states-rights principles, as the second Massachusetts president suffered the fate of his father.

The Supreme Court made important contributions to this postwar nationalism, and came into its own as a significant branch of the national government. The Constitution had provided for a separate, independent, and potentially quite powerful judiciary. Judges, appointed by the president and confirmed by the Senate, were to enjoy life tenure during good behavior, and could not have their salaries reduced while in office. The Constitution also gave the federal judiciary a vast grant of jurisdiction: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and Treaties….” Indeed, some Antifederalists feared that the federal judiciary would help destroy state power. But this was not a serious objection to the Constitution. More common was the Anglo-American sense that courts were defenders of individual liberty against arbitrary government, as the common law courts had resisted Tudor-Stuart absolutism. Thus Alexander Hamilton was able to dismiss fear of judicial oppression in the Federalist, calling the judiciary “the least dangerous branch,” one that could never harm the liberties of the people—so long as it respected the distinction between law and politics.

In addition, the Constitution gave the judiciary a vast potential power; in fact its composition and jurisdiction were almost entirely under Congress’ control. The Constitution required only a Supreme Court, and limited its original jurisdiction to a few matters of little importance. The remainder of the federal judicial system would consist of “such inferior courts as the Congress may from time to time establish.” Congress also controlled the appellate jurisdiction of the Supreme Court. Thus, when the First Congress considered a judiciary act it was effectively writing a whole new Article III.

The Judiciary Act of 1789 went a long way toward establishing s strong national judiciary, but also made significant concessions to state power. It established a three-tier structure: a district court in each state, a Supreme Court of six justices, and an intermediate circuit court composed of district judges and Supreme Court justices together. Its most important provision was section 25, which allowed appeals of constitutional questions from the highest state court to federal courts. Without this provision, state judges could be the ultimate arbiters of federal questions, and there might be as many constitutional interpretations as there were states. On the other hand, the act shared jurisdiction between federal and state courts, particularly in small suits.

In its first decade the Supreme Court was not a very busy or prestigious institution. It carefully avoided involvement in political controversies, limiting itself to legal “cases and controversies” only. It declined, for example, to give advice to President Washington on international law, and to serve as arbiters for the claims of Revolutionary War veterans. It did hear challenges to acts of Congress (always upholding them), and enforced treaty obligations against state laws that confiscated British and Tory property or repudiated debts. But when a creditor won a suit against the state of Georgia in 1793, state interests proposed a constitutional amendment that prevented states from being sued in federal courts. But in time the federal courts found ways around the Eleventh, “sovereign immunity” amendment, ratified in 1795.

The federal judiciary became a political football after the election of 1800. Having lost control of the executive and legislative branches, the lame-duck Federalist Congress enacted a new judiciary act in March, 1801. The act remedied some legitimate defects in the system, such as relieving the Supreme Court justices of the arduous duty of “riding circuit.” It did this by creating sixteen new circuit-court judgeships, all of which were given to Federalists—the courts being “packed,” Republicans complained, with “midnight judges.” The act also reduced the size of the Supreme Court from six to five—ostensibly because of the reduced work load, but apparently to deprive President-elect Jefferson of his first appointment. Finally, it expanded the jurisdiction of the federal judiciary, ending the power-sharing arrangement with the state courts.

Republicans did not attempt to repeal the act until the end of the year. Federalists claimed that the repeal was unconstitutional, since the new judges had been appointed for life terms. But the Supreme Court, most notably new Chief Justice John Marshall, upheld the repeal. The judicial system essentially reverted to its 1789 form.

Chief Justice Marshall also deftly handled another politically sensitive case, in the first instance of the Supreme Court overturning an act of Congress. The lame-duck Federalist Congress had also enacted a law for the government of the District of Columbia, creating several justice of the peace offices. President Adams appointed William Marbury to the office and signed his commission, which was sealed by then-Secretary of State John Marshall. Marshall left it on his desk; the new administration never delivered it. Marbury then brought suit in the Supreme Court, as provided by section 13 of the Judiciary Act of 1789, for a writ of mandamus—a court order to an executive officer to do his duty—ordering the new Secretary of State, James Madison, to deliver the commission.

Marshall’s opinion made a strong statement of the Court’s power to interpret, as well as the power to order the executive to enforce, acts of Congress. Marbury was entitled to his commission, and it was the duty of the executive to deliver it. However, in a deft maneuver, Marshall concluded that the Court had no power to issue the mandamus, because Congress had no power to give the Court original jurisdiction to issue it. Article III of the Constitution strictly defined the Court’s original jurisdiction, and did not include such power. That is to say, section 13 of the Judiciary Act was unconstitutional.

These details of the case are important because Marbury v. Madison is a frequently misunderstood case. In the twentieth century it has been interpreted as the foundation of judicial review, given Marshall’s refusal to follow an act of Congress contrary to the Constitution. “It is emphatically the province and duty of the judicial department to say what the law is,” the Chief Justice said. But Marshall made no claim to supreme or exclusive judicial power over constitutional questions. It was widely understood that the Supreme Court would necessarily have to review acts of Congress, but it was expected that, as in Marbury, they would be cases of a peculiarly judicial nature, involving judicial procedure and jurisdiction especially. In this case, Marshall was declining to exercise a power given to the Court; in other state cases, courts reacted to legislative encroachments on the judicial power. More controversial was Marshall’s threat to compel executive officers to enforce the law—the step that his adroit opinion avoided. The Supreme Court did not strike down another act of Congress until the Dred Scott case in 1857, which had disastrous consequences. Nor were any significant acts of Congress overturned until the end of the nineteenth century. Recent scholarship has cast doubt on the view that the pedigree of modern judicial activism is not traceable to John Marshall.

Marshall’s moderation in Marbury was answered by Jefferson’s frustration of radical Republican attempts to impeach Federalist judges. Led by John Randolph of Virginia, the Republicans believed that impeachment was a legitimate political weapon to keep the judiciary responsible to the sovereign people. Moderates countered that it could only be employed in cases of criminal conduct—that the Constitution’s standard of “treason, bribery, or other high crimes and misdemeanors” was equivalent to indictable offenses. The radicals were able to impeach and remove district judge John Pickering, but only because he was obviously habitually drunk and insane. Supreme Court Justice Samuel Chase, on the other hand, was accused of political intemperance and partisan bias. Due to a political falling out between Jefferson and Randolph, the President used his influence to win acquittal for Chase, which put an end to the impeachment campaign.

The outcome of these judicial skirmishes was political domination of the moderate Republicans and independence and stability for the federal judiciary. Jefferson made three appointments to the Supreme Court and James Madison two, all of whom were won over to John Marshall’s side. From 1811 to 1823 there were no new appointments to the Court, allowing Marshall to consolidate his control of the institution, and to move ahead to augment political nationalism in the postwar years.

The Marshall Court’s most important legacy was upholding the supremacy clause of the Constitution: that “This Constitution, and the laws of the United States… shall be the supreme law of the land… any thing in the constitution or laws of any state to the contrary notwithstanding.” Even before 1801, the Court had forced states to abide by federal treaty obligations, and in 1809 the Marshall Court vindicated federal maritime jurisdiction over state interference. The next year, Marshall began to make vigorous use of the contracts clause—Article I, section 10’s command that “No state shall… pass any law… impairing the obligation of contracts.” The Georgia legislature, almost completely bribed, had sold a vast amount of state land to real estate speculators in the notorious “Yazoo land fraud” of the 1790s. A subsequent legislature revoked the sale. When third-party purchasers sued to regain it, the Supreme Court sided with them in the 1810 case of Fletcher v. Peck. Marshall ruled that, albeit tainted by fraud, the sale was a valid contract that a state could not abridge. The decision was characteristic of Marshall Court decisions in its concern for private property rights and the effect it had of encouraging entrepreneurship. The Court later applied the contract clause to state grants of tax-exemption, interstate compacts and, most important, corporation charters. The Court helped to development of the idea of a private corporation, since corporations had traditionally been regarded as public bodies. In one of the Marshall Court’s most famous decisions, it prevented the state of New Hampshire from taking over Dartmouth College, interpreting the college’s 1769 royal charter as a contract. The Court was also largely able to prevent states from reviving the kind of debtor-relief laws that plagued the Confederacy in the 1780s.

The Marshall Court’s most important decision was probably McCulloch v. Maryland (1819), sustaining the Second Bank of the United States against Maryland’s attempt to tax it out of existence. Marshall emphasized that the American Constitution was the act of the sovereign people, rather than a compact among sovereign states. He admitted that the people had empowered government at two levels, and that the national government was one of limited, enumerated powers. But within its sphere of delegated powers, it was supreme. While the power to charter a bank was not among the enumerated powers, Marshall claimed that the Constitution, especially the necessary-and-proper clause, allowed for implied powers. A Constitution could not provide a specific provision for every possible contingency of the future, he said. It could only mark the general purposes of government, and must be read broadly.

Marshall also began to give strength to the Constitution’s grant of power to Congress to “regulate commerce… among the several states.” In 1824 he struck down a New York monopoly grant on Hudson River steamboat traffic, as conflicting with a federal coasting act. He argued for a broad definition of “commerce.” “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse,” he said. Similarly, the Court struck down a Maryland law that discriminated against out-of-state importers. Here, too, the Court promoted a national free market.

Marshall had established important precedents in a broad range of cases. The Court almost always spoke unanimously, and usually through the Chief Justice, who dissented in only one important case. As Marshall recognized that postwar patriotism would sustain his defense of federal power, so he restrained himself when the Jacksonian states-rights reaction set in. In 1829 the Court recognized a “dormant commerce power”—that states could affect interstate commerce in the absence of federal legislation. It also ruled that corporate charters did not give their holders extraordinary privileges such as tax exemption. Finally, the Court reaffirmed the fact that the Bill of Rights did not limit state power.

Andrew Jackson’s 1828 election ushered in a new period in American political history. It marked the movement away from constitutional nationalism and toward a states-rights federalism, weakening the power of the central government, and culminating in secession and civil war. It also brought forth the rise of modern political parties. Nearly all of the restrictions on white male suffrage were gone by the 1820s, and the principle of unfettered majority rule was ascendant.

Whereas the founding generation denounced political parties as “factions” and threats to republican government, the antebellum generation came to accept and embrace them as safeguards to constitutional government. They were useful institutions in organizing and communicating with the mass of new voters. They also helped to make American politics less extreme and ideological, drawing people’s attention away from divisive issues like slavery, and preventing or controlling the personal ambitions of politicians. Martin Van Buren in particular espoused the value of permanent, intersectional party organization, in the aftermath of the 1820 crisis over slavery in Missouri, and the heated, disorganized presidential election of 1824. Voter participation was never higher than in the period from the 1840s to the 1880s. But there was a price to be paid for the party system. They were not able to deal with morally charged issues like slavery, and tended to make partisan power an end in itself. People worked for their parties for the socioeconomic benefits that political power conferred—most obviously in government employment and “patronage.”

The Jacksonian Democratic party was in large measure the successor to the Jeffersonian Republican party. It was predominantly southern and western, and composed largely of peripheral ethnic and religious groups (other than blacks), including the large numbers of new immigrants who came to America after the end of the wars of the French Revolution. The party believed in the separation of church and state, and generally frowned on government interference in cultural and moral matters. It believed that the states rather than the national government ought to guide economic development, though radical Jacksonians were laissez-faire libertarians. The Democrats differed from the old Republicans in their acceptance of an active executive role. Andrew Jackson was a vigorous president, who believed that, as the only officer elected by the entire people, he embodied the popular will.

These party positions, particularly the energetic executive, gave rise to an opposition party, the Whigs. The Whigs followed the Federalists as constitutional nationalists. The party was strongest in the northeast and was composed of the “core” ethno-cultural groups—primarily British Protestants, but also blacks where they could vote. The Whigs embraced a strong central government, and advocated the Hamiltonian policy of national mercantilism. They tended to be more censorious than the Democrats, and were willing to use government power to impose cultural and moral norms. They reacted strongly to Jackson’s use of executive power, taking the name “Whig” as opponents of the man they called “King Andrew the First.”

The Democrats generally devolved government functions to the states. The federal budget surplus was simply distributed to the states, despite the doubtful power of Congress to do this under the Constitution. Jackson similarly allowed the states to take over Indian policy, allowing Georgia to oust the Cherokees. In this conflict, the Supreme Court denied that Indians were citizens who could sue in federal courts, defining them as “domestic dependent nations.” In a subsequent case the Court held that Georgia could not exercise political power in Cherokee lands (Georgia had prosecuted white missionaries for preaching in Indian territory without the state’s permission), but Georgia ignored the Court. The issue was resolved politically before a final confrontation between the President and the Chief Justice.

The most significant assault on national power came in Jackson’s “war” against the Second Bank of the United States. The nascent Whigs moved to renew the charter of the bank in 1832, hoping to make an election issue of it. In a blistering veto, composed by his attorney general and future Chief Justice, Roger B. Taney, Jackson vetoed the bill. Denying that the Supreme Court’s decision in the McCulloch case settled the issue of the constitutionality of the bank, Jackson asserted the equal right of each branch of the federal government to interpret the Constitution. He also defended the participation of the president in legislation and policy-making. The message also contained a forceful presentation of Democratic socioeconomic views. His dander up, Jackson next proposed to punish the Bank by removing the funds of the United States from the Bank, despite the fact that the government may have been legally obliged to maintain them. He had to fire two Secretaries of the Treasury who refused to withdraw the money, finally installing Taney, who carried out his orders. This led the Senate to “censure” the President, which Jackson regarded as being an unconstitutional act. (When Democrats regained control of the Senate, the resolution of censure was “expunged” from the record.) But Jackson was easily re-elected in 1832.

But Jackson’s nationalist spirit was kindled by South Carolina attempt to “nullify” the protective tariff. John C. Calhoun, who had been a strongly nationalist Secretary of War and Jackson’s first-term Vice-President, led the effort to force the government to reduce the tariff. Based on state-sovereignty and state-compact theories of the Union, Calhoun argued that the states had the power to suspend the operation of federal laws that were beyond the power of Congress to enact. If the other members of the Union chose, they could amend the Constitution to give Congress such power, but the nullifying state had the final option to secede from the Union. When a special popular convention voted to nullify the tariff in 1832, Jackson responded forcefully. He defended the popular sovereignty view of the Union, declaring that the Constitution formed a genuine government, not a league of sovereign states. He warned the South Carolinians that “Disunion by armed force is treason,” and asked Congress for a “Force Act” to enable him to suppress rebellion. But so ardent was Jackson’s response that moderates began to be as concerned about the danger of executive power as they were about the nullification threat. Jackson ended up having to accept a compromise brokered by his political opponent, Henry Clay, in which the tariff would be reduced over the course of a decade. South Carolina simply repealed its ordinance of secession, but did not repudiate the doctrine itself.

In his second term, Jacksonians took control of the Supreme Court. Chief Justice John Marshall died in 1835, and Jackson appointed Roger B. Taney to succeed him. Taney had been rejected by the Senate when appointed to an associate justice seat the previous year, but was now confirmed. Jackson and his successor, Martin Van Buren, appointed every member of the Supreme Court except for Joseph Story, the lone survivor of the Marshall Court. While nervous nationalists anticipated a judicial revolution, the Taney Court most often continued Marshall Court precedents. There was sometimes a subtle shift toward the states in federalism questions, and the Taney Court was marked by plurality rather than unanimity in its opinions. But the Court was finally polarized and wracked by the slavery issue, and Taney’s decision in the Dred Scott case has indelibly tarnished his otherwise distinguished career.

In its first term, 1837, the Taney Court signaled a change of emphasis. It overturned a Marshall Court decision that prevented states from issuing paper money, by allowing state-chartered banks to do so. In the term’s most important decision, the Charles River Bridge case, the Court held that corporation charters did not give their holders implied monopoly privileges. In this case, it allowed Massachusetts to charter a new bridge across the Charles River, despite the fact that it would reduce the value of the first bridge company’s charter. “While the rights of private property are sacredly guarded,” Taney wrote, “we must not forget that the community also have rights, and that the happiness and well being of every citizen depends on their faithful preservation.” Although Whigs feared that the decision was the opening of a democratic assault on property rights, an invitation for popular majorities to dispossess minorities, it was not that at all. The decision gave impetus to new, innovative entrepreneurship, in keeping with the “creative destruction” typical of capitalist economies.

The Taney Court showed its sympathy to economic enterprise in other areas. It prevented states from enacting debtor-relief legislation that impaired contracts, and prevented municipalities from repudiating bond issues. It also gave corporations some of the rights of “citizens” under the Constitution—especially access to federal courts, which were generally more pro-business than state courts. The Court also tried to revive the idea of a federal common law in commercial matters, but did not succeed in fashioning a uniform national commercial code. Rival federal and state business law remained a problem. These cases were indicative of the Taney Court in that it was generally in favor of states rights, but also exercised federal judicial power. It was something of a paradox that the Taney Court helped to centralize the American market economy at the same time that political and constitutional power was decentralizing. The antebellum political and constitutional system ultimately ran aground on the shoals of slavery.

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• Lance Banning, “Republican Ideology and the Triumph of the Constitution,” WMQ 31 (1974).
• Clinton L. Rossiter, Alexander Hamilton and the Constitution (1964).
• Herman Belz, Ronald Hoffman and Peter J. Albert, eds., To Form a More Perfect Union: The Critical Ideas of the Constitution (1992).
• Leonard D. White, The Federalists: A Study in Administration (1948).
• Forrest McDonald, The Presidency of George Washington (1974).
• C. Bradley Thompson, John Adams and the Spirit of Liberty (2000).
• Leonard D. White, The Jeffersonians: A Study in Administrative History (1951).
• Stanley Elkins and Eric McKitrick, The Age of Federalism (1993).
• Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (1971).
• Edward S. Corwin, John Marshall and the Constitution: A Chronicle of the Supreme Court (1919).
• Raoul Berger, Congress versus the Supreme Court (1969).
• Robert L. Clinton, Marbury v. Madison and Judicial Review (1989).
• Robert L. Clinton, “The Supreme Court Before John Marshall,” Journal of Supreme Court History 27 (2002).
• Ronald Hoffman and Peter J. Albert, eds., The Bill of Rights: Government Proscribed (1997).
• Andrew Lenner, The Federal Principle in American Politics, 1790-1833 (2001).
• G. Edward White, The Marshall Court and Cultural Change, 1815-35 (1988).
• R. Kent Newmyer, The Supreme Court Under Marshall and Taney (1968).
• Jean E. Smith, John Marshall: Definer of a Nation (1996).
• Leonard D. White, The Jacksonians: A Study in Administrative History (1954).
• Ronald D. Formisano, “Deferential-Participant Politics: The Early Republic’s Political Culture, 1789-1840,” American Political Science Review 68 (1974).
• Daniel Walker Howe, The Political Culture of the American Whigs (1979).
• Harry L. Watson, Liberty and Power: The Politics of Jacksonian America (1990).
• Lee Benson, The Concept of Jacksonian Democracy: New York as a Test Case (1961).
• Richard E. Ellis, The Union at Risk: Jacksonian Democracy, States’ Rights, and the Nullification Crisis (1987).
• Clyde N. Wilson, ed., The Essential Calhoun: Selections from Writings, Speeches, and Letters (1992).
• Forrest McDonald, States’ Rights and the Union: Imperium in Imperio, 1776-1876 (2000).
• Harold M. Hyman and William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1835-75 (1982).
• Stanley I. Kutler, Privilege and Creative Destruction: The Charles River Bridge Case (1971).
• Carl B. Swisher, Roger B. Taney (1935).
• Charles W. Smith, Jr. Roger B. Taney, Jacksonian Jurist (1936).
• Suzanna Sherry, “The Founders’ Unwritten Constitution,” University of Chicago Law Review 54 (1987).
• Leonard R. Sorenson, Madison on the “General Welfare” of America: His Consistent Constitutional Vision (1995).
• Lawrence F. Kohl, The Politics of Individualism: Parties and the American Character in the Jacksonian Era (1989).
• Richard P. McCormick, The Second American Party System: Party Formation in the Jacksonian Era (1966).
• William E. Nelson and Robert C. Palmer, Liberty and Community: Constitution and Rights in the Early American Republic (1987).

V: Slavery, Civil War, and Reconstruction

Slavery and race presented the most serious problems to the American effort to maintain constitutional government. Slavery existed by law in every American colony, as it did throughout most of the world for most of human history. Nearly all of the founders recognized that slavery contradicted the principles of the Declaration of Independence. The institution was under attack by both enlightened rationalists and evangelicals. At the same time, powerful economic interests demanded its continuation. Moreover, slavery was not only an economic institution but a system of race relations. Few Anglo-Americans believed that blacks could live on a plane of equality with whites. Immediate emancipation would be calamitous for both races, most concluded. The well-known anguish of Thomas Jefferson during the revolutionary generation is representative of white American ambivalence on the issue.

The founding generation did act upon its anti-slavery beliefs. Every state north of Maryland abolished slavery, either gradually or immediately, by various means. This was perhaps the most important effect of the American Revolution—it turned slavery from a national into a sectional institution. Though the vast majority of slaves were in the South, perhaps ten percent of New York’s population was enslaved in 1776. Southern states made it easier for individual masters to liberate their slaves (manumission), and many did—manumission freed more slaves in the South than abolition did in the North. Blacks certainly enjoyed some of the rights of citizenship in the Confederation period. The last significant act of the Confederation Congress was to abolish slavery in the Northwest Territory.

Slavery was an important issue at the Constitutional Convention (see chapter 3), and it was a matter of debate in the antebellum years and among historians to this day as to how much the Constitution accommodated slavery. It is fair to say that, while the document clearly gave certain safeguards to slavery, these were exceptions to a general theme of liberty. But, in the changed circumstances after ratification, and with the national government usually under the control of pro-slavery political parties, the Constitution was turned against the design of its framers.

The change in American thinking about slavery and race reflected the general reaction against the Enlightenment after the French Revolution. The French experience showed the danger of taking the ideas of liberty and equality too far. This seemed especially so when the slaves of the French colony of St. Domingue (Haiti) rebelled against their owners and massacred them—exactly the race war that southerners feared. Gabriel Prosser’s slave rebellion in Virginia in 1800 reinforced such fears. In addition, the invention of the cotton gin in 1793 intensified the economic interest in slavery. A declining importance in the old tobacco country of the upper South, slavery was immensely profitable in the cotton lands of the new southwest. While the evangelical Protestantism of the second Great Awakening intensified religious anti-slavery sentiment, pro-slavery men began to devise new religious and racial arguments in favor of slavery. In the founding generation, southerners generally apologized for slavery, recognizing its wrongness but not knowing what practical steps to take about it, and northerners sympathized with their situation. By the 1830s, southerners constructed a defense of slavery as a “positive good,” and more northerners turned anti-slavery into a moral condemnation of the South, demanding immediate abolition regardless of the consequences.

The states regulated the legal status of citizens and slaves almost exclusively. State law varied, but in general the condition of slaves and free blacks deteriorated both North and South in the antebellum years. Slaves states made it more difficult to manumit slaves, and many states deprived blacks of the right to vote as they extended it to white males without property. (Free blacks could vote even in the slaves states of Tennessee and North Carolina until the 1830s.) Massachusetts repealed its law banning interracial marriage in 1843, but it permitted the city of Boston to segregate its public schools until 1855. New free states prohibited free blacks from moving in. Even where free blacks enjoyed civil rights on paper, popular opinion and mobs prevented their exercise. Abolitionists in the North were also subject to mob violence. They could not speak out against slavery in the South, where several states enacted sedition laws to punish anti-slavery speech and writing. No small number of whites opposed the spread of slavery into the West because they opposed the migration of blacks into the West.

The federal government largely avoided the issue of slavery and left it to the states, but where it could not ignore the issue it usually favored slave interests. Congress prohibited blacks from serving in the national militia or postal service. In 1790 it exercised its power “to establish an uniform rule of naturalization” and limited new citizenship to whites. The attorney general suggested in 1821 that blacks who were state citizens might be able to command vessels of the United States. But Attorney General Roger B. Taney declared in 1832 that, regardless of their status in free states, blacks could never be considered US citizens. In the 1830s, intense controversies arose in Congress about abolitionists’ rights to use the US mail and to petition Congress. Southern states effectively nullified the legal requirement that postmasters deliver mail to its addressee. While the House of Representatives eventually repealed an anti-abolitionist “gag rule,” the Senate maintained a custom against receiving anti-slavery petitions. In foreign affairs, the diplomatic corps worked to procure compensation for slave owners who lost slaves in the wars of Independence and 1812. The US outlawed the slave trade in 1808 and punished slave traders as pirates. Nevertheless, in several celebrated cases involving mutinies and escapes of enslaved Africans (most notably the Amistad), the federal government was more concerned about appeasing southern and European interests than in securing the natural freedom of captured Africans.

The most difficult areas for the national government to avoid the issue of slavery involved fugitive slaves and the territories. With its usual reticence regarding slavery, the Constitution declared that “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service of labor may be due.” The most extreme anti-slavery men claimed that this “fugitive slave clause” did not apply to slaves at all, but only to indentured servants. But the framers wrote the provision in the passive voice, indicating neither who would enforce it nor the means to do so. Since they placed it in Article IV of the Constitution, the part dealing with inter-state or “comity” matters, perhaps it was entirely a state matter. In any case, Congress enacted a Fugitive Slave Act in 1793, providing for concurrent enforcement by federal and state officers.

By the 1820s, interstate comity began to break down. In order to protect their free black citizens from kidnapping, northern states enacted “personal liberty laws” to ensure that accused fugitives received due process of law. Southern states regarded these as attempts to obstruct the Fugitive Slave Act and renege on their duty to assist in the return of fugitives. At the same time, northerners believed that slave states had an obligation to respect the rights of free blacks, since Article IV of the Constitution also declared that “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” In 1823, South Carolina enacted a “Negro Seamen law” that required free black sailors to be imprisoned while their ships lay in port. Though a federal circuit court held the act unconstitutional, South Carolina ignored the ruling.

The Supreme Court entered the fugitive slave thicket in 1842, hearing the appeal of a Maryland slave-catcher convicted under Pennsylvania’s personal liberty law. The Court overturned the Pennsylvania law as state interference in the exercise of a valid federal power—the Fugitive Slave Act. But Justice Story ruled that, since federal power to enforce the fugitive slave clause was “exclusive,” states could not be compelled to assist in its enforcement. Southerners on the Court objected to this interpretation, and many northern states took it as an invitation to obstruct the Fugitive Slave Act by other means. This led southerners to demand a more stringent federal act. As for disputes among states regarding the status of individual blacks, the Supreme Court in 1850 decided that it would not review the judgments of the highest state courts. Thus it was left to northern states to decide how long they would allow slaveholders to keep (or “sojourn” with) their slaves in free states before they became free, and to southern states to decide how long they would let free blacks remain in slave states before they returned to slavery (“reattachment”).

Slavery in the territories was the principal issue that led to the Civil War. Congress prohibited slavery in the territories North of the Ohio River in the 1787 Northwest Ordinance. When the US purchased the Louisiana Territory in 1803, about half of the population were slaves and the purchase treaty guaranteed the property rights of their owners. Louisiana entered the union with slavery in 1812. By 1819, Missouri was ready to enter the union, but some northern congressmen attempted to require the state to make provision for the abolition of slavery as a condition of admission. This opened a heated argument over the power of Congress regarding slavery—what Jefferson called the “firebell in the night” that augured the end of the union. In the end, Missouri joined the union as a slave state and Maine entered as a free state, and slavery was prohibited North of the line 36º 30”—most of the remainder of the territory. A provision in Missouri’s constitution directing the legislature to enact laws to prevent the migration of free blacks compounded the crisis. Northerners insisted that the state promise that it would not thus violate the rights of black citizens of other states. The Missouri legislature answered that it had no power to enforce such a pledge, made the pledge anyway, and ignored it.

Texas reopened the issue. Mexico had abolished slavery in 1829, but American settlers brought their slaves in anyway. When Texas won its independence from Mexico in 1836 it sought annexation by the United States. The American government resisted until 1844, when the Democratic candidate for President, James K. Polk, endorsed it. President Tyler submitted an annexation treaty to the Senate, where it was defeated. After the election, Congress passed a joint resolution of annexation by a simple majority rather than the 2/3 treaty majority. The annexation led to war with Mexico, the whole process being regarded by many Whigs and northerners as a southern Democratic plot to extend slavery.

The US acquired another half million square miles of territory from Mexico, and the question of the status of slavery exploded again. During the war, antislavery congressmen supported a proposal by Pennsylvania Democrat David Wilmot, that slavery be prohibited in any territory won from Mexico. Though Congress never adopted it, the “Wilmot Proviso”—that Congress could and should keep slavery out of the territories—became the principal antislavery constitutional position. Others hoped that Congress would extend the Missouri Compromise line through the new territories, but opinion had become too polarized for this. The position of extreme pro-slavery men such as John C. Calhoun was that Congress had no power to prohibit slavery in the territories, but only a duty to protect slave property there. The newest idea, devised by Michigan Democrat Lewis Cass and championed by Illinois Democrat Stephen Douglas, was that Congress should allow the people of a territory to decide the question for themselves. This doctrine was known as “popular sovereignty.”

The deadlock continued into 1850, when Congress enacted a set of measures giving North and South some of what each wanted. The most important provisions of the “Compromise of 1850” admitted California as a free state, applied popular sovereignty to the remainder of the Mexican Cession, abolished the slave trade (but preserved slavery itself) in the District of Columbia, and provided a new, more stringent Fugitive Slave Act. Very few members of Congress voted for both anti- and pro-slavery measures—the proportion of genuine compromisers was dwindling, but those in the middle were able to combine with minorities on both sides to defuse the crisis temporarily.

The settlement lasted only four years. In 1854 Stephen Douglas, seeking southern support for a bill to establish territorial government for the remainder of the Louisiana Purchase, agreed to an explicit repeal of the Missouri Compromise. In 1850 national policy had shifted from congressional prohibition to congressional non­interference, he claimed. The Kansas-Nebraska Act sparked a political firestorm, rent the Democratic party, and created the Republican party. Antislavery and pro-slavery settlers raced into Kansas, hoping to control the first government and to bring the territory in as a state for their side. Although antislavery settlers vastly outnumbered pro-slavery ones, a combination of force, fraud, and manipulation by the Democratic administration produced a pro-slavery constitution. Douglas, seeing this as a mockery of genuine popular sovereignty, broke with the administration, further destabilizing the political situation.

The Supreme Court added to the conflict when it gave the Constitution a radically pro-slavery interpretation in the 1857 Dred Scott case. A decade earlier, Dred Scott had sued for his freedom, since his owner had taken him for long periods into free states and territories. He won in the Missouri trial court, which applied the principle of “once free, always free.” The Missouri Supreme Court reversed the decision, however, reflecting the breakdown of interstate comity on the slavery issue. Scott then brought suit in federal court, and finally the Supreme Court in 1856. Under the 1850 precedent of Strader v. Graham, the case could have been easily disposed of: the Supreme Court would not review a state supreme court decision regarding the status of a slave. But Chief Justice Taney, enraged at the dissenting opinions being prepared by the two anti-slavery justices, decided to write a more comprehensive opinion.

The two essential points of Taney’s decision were that Congress had no power to prohibit slavery in the territories, and that blacks could not be citizens of the United States. The decision appeared to make the Douglas-Democratic popular sovereignty and Republican Wilmot proviso positions unconstitutional, and to endorse the Calhounite view of slavery and the Constitution. It set the stage for the most dramatic debate on the issue, between Douglas and Abraham Lincoln in the 1858 Illinois senate campaign. The Republican party began in opposition to the repeal of the Missouri Compromise and the opening of the territories to slavery. Lincoln suggested that the decision was part of a campaign to nationalize slavery, and that a “second Dred Scott decision” would declare that no state could prohibit slavery. He claimed that Douglas was a party to this conspiracy. Douglas’ popular sovereignty was an unreliable doctrine to prevent the spread of slavery into the territories; even more, Douglas himself was not reliable because of his moral indifference to slavery. Lincoln and the Republicans proposed to repeal the Kansas-Nebraska Act, prohibit slavery in the territories, and reverse the Dred Scott decision.

Douglas staked all on his popular sovereignty principle. While he was personally opposed to slavery, he believed that the national government should allow local majorities to decide whether slavery was right or wrong for them. He claimed that he had stood up for it against abolitionists who would deny the right of territories to have slavery, and against the administration when it tried to impose a pro-slavery constitution on Kansas against the will of the majority. Lincoln and the Republicans called for a war on slavery, and would impose national uniformity and destroy states rights and local self-government. Douglas further accused the Republicans of not respecting the final authority of the Supreme Court to interpret the Constitution, while Douglas accepted Dred Scott and saw no appeal of the decision above the Supreme Court. He believed that popular sovereignty remained possible under Dred Scott, and agreed with the Court that blacks had no rights beyond those that whites might extend to them, while he accused the Republicans of favoring social and political equality for inferior races. In the state legislature elections (US senators were chosen by state legislatures until 1913), Republicans won more votes than the Democrats but, due to pro-Democratic apportionment, the Democrats got a majority of seats and returned Douglas to the Senate.

Lincoln succeeded in wresting leadership of the antislavery political movement from Douglas to the Republicans. Sectional animosity grew before the 1860 elections, particularly after John Brown’s 1859 attempt to incite a slave rebellion in Virginia. The Democratic party split at its 1860s convention when Douglas refused to accept the southerners’ demand for a territorial slave code. Lincoln was able to win the election solely with northern votes. Before he was inaugurated, South Carolina and six other states of the deep South declared that the Union was dissolved. They declared that the northern states had violated the terms of the constitutional contract, and the government had become destructive of the ends for which it was established. In effect, the states claimed to be able to exercise a right to revolution by the peaceful and legal means of secession.

Lincoln responded to the secession crisis with a firm but conciliatory inaugural address in March, 1861. He reiterated the policy of the Republican party, that it proposed only to keep slavery out of the territories, not to interfere with it in the states where it existed. They were even willing to accept an unamendable constitutional amendment that would forever prohibit Congress from touching the institution. But he would not accept any compromise on its containment. “One section of our country believes slavery is right, and ought to be extended, while the other believes it is wrong, and ought not to be extended,” he concluded. “This is the only substantial dispute.” He admitted that there was a constitutional obligation to return fugitive slaves, but also that the rights of free blacks and black citizens must be protected. Lincoln also repeated that the Supreme Court’s Dred Scott decision did not settle the issue, warning that judicial arrogation of exclusive constitutional interpretation was a threat to republican self-government. He explained that the Union was perpetual, and that there was no peaceful way of dissolving it. The government would maintain control of its property throughout the Union, but he assured the South that the government would not impose Republican officers in the South nor instigate hostilities.

Hostilities began in earnest the next month, when South Carolina militia fired upon US ships attempting to resupply Fort Sumter. Lincoln responded forcefully, declaring an insurrection and calling up militia and expanding the regular army. These moves led four states in the Upper South, most importantly Virginia, to secede. They also raised questions of the constitutional power of the president in time of war or rebellion. Lincoln summoned Congress into special session, but not until July. In the meantime, he spent and borrowed millions of dollars without legislative appropriation, imposed a blockade upon the South, and suspended the writ of habeas corpus. When Congress convened, Lincoln admitted that he had perhaps acted “without lawful authority,” but denied that any of his acts were “illegal.” He believed that the Constitution gave the executive power to act in emergency situations. For the most part, Congress and the northern electorate agreed, sustaining the administration in its conduct of the conflict.

The suspension of habeas corpus was probably the most controversial action. The right for a prisoner to appeal to a judge and to make the government give reasons for his detention was among the oldest and most fundamental rights in the Anglo-American tradition--habeas corpus was known as “the great writ.” The Constitution provides that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it,” but does not specify who has the power to suspend it. Opponents of the administration claimed that the power, being in Article I, belonged to Congress. Chief Justice Taney embraced this interpretation when, on circuit in Maryland, he overturned the suspension. The administration, however, argued that in emergencies the executive needed speed and discretion that the legislature was incapable of providing. Lincoln ignored Taney’s order, and was able to continue his policy despite the attempts of courts and Congress to control the suspension.

Throughout the conflict, the anomalous nature of “civil war” beclouded constitutional analysis. While the administration never admitted that any states had seceded or that there was a “Confederate States of America,” it nevertheless imposed a blockade on the South, an act of war between sovereign belligerents according to international law. It similarly treated captured Confederate soldiers and sailors as prisoners of war, not as bandits or pirates. No rebels were convicted of treason; instead, Congress enacted sedition and confiscation acts to prosecute them. Most controversial was the use of military tribunals to try civilians. During the war, the Supreme Court ruled that it could not hear appeals from military commissions, which were not “courts” under the Constitution. After the war, the Court ruled that the government could not use military tribunals in places remote from combat where ordinary civil courts were operating. Congress removed the Court’s jurisdiction in such cases during Reconstruction, and government again used military courts during World War II. Their status remains a question today. But, on the whole, the deprivation of civil liberties was limited, and usually war-related.

The war overshadowed a significant turn in American political development. The Republican party established itself as the dominant party for the next seventy years. The successor to the Federalists and Whigs, it embraced the Hamiltonian program of national mercantilism. The US became a high-tariff country, and Congress created a system of national banks, though it did not reestablish the Bank of the United States. The federal government subsidized internal improvements, especially a continental railroad system. Some policies, such as conscription, paper money, and the income tax, were temporary and war-related; others, such as the pensions provided for Union Army veterans, continued for many decades.

Federal policy regarding slavery was of overwhelming importance. Though Lincoln made clear that the Republicans foreswore any intent to interfere with slavery where it existed, the war drove them to do so. Congress provided for the emancipation of slaves used to support rebel military action in 1862, and later that year Lincoln issued the Emancipation Proclamation, freeing all slaves in parts of the country still in rebellion. Issued as a war measure under his power as commander-in-chief of the armed forces, it fundamentally altered the nature of the war. Finally, slaves in the loyal slave states and parts of the Confederate states under Union control were emancipated by the Thirteenth Amendment, which abolished the institution. Northern military triumph in April, 1865 and the ratification of the Thirteenth Amendment in December established the two definite results of the Civil War—the end of secession and slavery.

Postwar statesmen had a twofold goal: to restore the southern states to their proper relation to the Union, and to secure the freedom of the former slaves. National policy was in the hands of moderate Republicans in Congress, who faced recalcitrant southern whites and Democrats on the one hand and the radical wing of their party on the other. The Democrats wanted “the union as it was and the Constitution as it is”—in other words, as little political alteration as possible. The radicals sought profound changes in the southern states, and were willing to keep them out of the Union and fundamentally alter the federal system to do so.

Controversy over national policy was already present during the war. At the end of 1863, President Lincoln issued a Proclamation of Amnesty and Reconstruction, proposing to restore rebel states once ten percent of their population swore an oath of loyalty to the United States, agreed to recognize the freedom of emancipated slaves, and excluding from government only those rebels who had previously violated an oath to uphold the Constitution. Several states under the control of Union Army forces were ready for readmission by 1864. Congress, on the other hand, was concerned about its own role in the reconstruction process, and also wanted to impose more stringent terms on the South. After Lincoln vetoed a radical reconstruction plan, the radicals prevented the readmission of Lincoln’s Louisiana government.

This impasse continued through the end of the war and Lincoln’s assassination. Andrew Johnson, a loyal Tennessee Democrat, had been chosen for Lincoln’s running mate in 1864 when the Republican party campaigned as the “Union Party.” A Jacksonian with no love for the plantation elite of the South, he sometimes gave voice to a vindictive policy. On the other hand, Johnson was a white supremacist with no great concern for Negro rights. He largely followed Lincoln’s lenient policy, proclaiming the rebellion at an end in May, 1865 and expecting the rebel states to reenter Congress in December, 1865.

Congress seized control of the reconstruction process, convinced that Johnson’s policy would squander the fruits of victory, sending the message that 400,000 Union soldiers had died in vain. Southern states sent prominent rebels as their representatives and senators, including erstwhile Confederate Vice-President Alexander H. Stephens. Moreover, southern legislatures had enacted harsh “black codes” that meant to keep the freedmen as close to slavery as possible, congruent with the Dred Scott view that free blacks were not citizens. The Republicans refused to seat the southern congressmen while they devised a new policy. The first step in this process was the extension of the Bureau of Refugees, Freedmen, and Abandoned Lands, an Army agency meant to cope with the destruction and privation wrought by the war. It also passed the Civil Rights Act of 1866, which declared blacks to be citizens and prohibited states from depriving them of basic civil rights. It hoped to guarantee equal treatment in criminal justice, and to secure black property rights, particularly by giving them access to courts and enabling them to enforce contracts. Johnson vetoed both bills as unconstitutional usurpation by the national government of state power, and disputed that Congress could do anything while eleven states were not represented.

The Republicans overrode Johnson’s veto of the Civil Rights Act and later of the Freedmen’s Bureau Act. They also began to pursue a more comprehensive plan to settle outstanding issues of reconstruction. The Fourteenth Amendment was the result. The first section of the amendment essentially restated the Civil Rights Act, ensuring that a subsequent Congress could not repeal it. It defined citizenship on the basis of birth within the United States, and prohibited any state from abridging the “privileges and immunities” of citizens. It also held that state could not “deprive any person of life, liberty, or property without due process of law; nor deny to any person… the equal protection of the laws.”

The amendment also addressed the politically difficult issue of black voting. Voting was generally not considered a fundamental civil right, but a political right, along with the right to hold office or serve on juries. Most northern states did not allow blacks to vote, and black enfranchisement remained unpopular among northern whites. But one of the ironic effects of the abolition of slavery was that southern states would gain seats in the House, since blacks would count as five-fifths, rather than as three-fifths, of a white person. The amendment thus provided that states would lose representation in the House of Representatives if they denied the right to vote on the basis of race. It did not compel any state to enfranchise blacks, but it allowed northern states to limit the right to vote to whites without suffering very much loss of political power. It thus attempted to avoid black suffrage in the North, where the Republicans were vulnerable on the issue, while it provided an incentive for black suffrage in the South, where the Republican party depended on it.

The Fourteenth Amendment provided that nobody could hold federal or state office if he had taken and oath to support the Constitution and then violated it by engaging in the rebellion. But it permitted Congress, by a two-thirds vote, to remove this disqualification. It thus removed the President’s power to pardon former rebels. Initially it disqualified about 100,000 southerners, but by the end of the century Congress lifted all disqualifications. Finally, the amendment guaranteed the public debt that the Union had acquired in suppressing the rebellion, and forbade any state to pay debt acquired in rebellion.

Ratification of the Fourteenth Amendment became the price of readmission for the confederate states. But every one except Tennessee refused to do so, hoping that the 1866 elections would provide a more lenient Congress. Instead, the elections strengthened the radical Republicans. In 1867, Congress enacted a Military Reconstruction Act. The Army would remain in the South and oversee the drafting of new constitutions, all of which would include black suffrage. These legislatures in turn ratified the Fourteenth Amendment. Radical as the act appeared, it did not go so far as to confiscate and redistribute property—the radical aspiration to provide former slaves with “forty acres and a mule” from their former owners. The idea of black civil and political equality was denounced by most southern whites, many of whom refused to participate in the constitutional and political process. Congress originally required that the state constitutions be ratified by a majority of all registered voters, but had to lower the standard to a majority of participating voters. This was a sign of the fragility of the new state governments and their lack of basic legitimacy in the eyes of most whites.

President Johnson was unable to prevent Republican legislation, but he did try to hobble its enforcement in the South. Congress in turn tried to limit the president’s power, particularly by the Tenure of Office Act, which curtailed his removal power. Though the act was of doubtful constitutionality, and though it was doubtful that Johnson violated it, the Republicans finally impeached him when he fired the Secretary of War in 1868. Johnson narrowly escaped conviction in the Senate, but became less of an obstruction to Republican policy.

Seven of the confederate states were readmitted in time for the 1868 elections and the last three in 1870. By this time, the Republicans added ratification of the Fifteenth Amendment to the readmission requirements. This amendment prohibited any state from depriving adult males of the right to vote on the basis of race. It actually enfranchised more blacks in northern than southern states. However, it permitted states to use racially-neutral criteria that would have the effect of racial disfranchisement— literacy tests, poll taxes, and the like. By the end of the century, when white Democrats had regained control of all the southern states, it would be effectively nullified.

For a time, though, southern states engaged in an unprecedented bi-racial democratic politics. These Reconstruction governments undertook a great deal of controversial economic promotion and progressive social welfare legislation. They were also as corrupt and venal as many other late 19th century state and local governments, which added to their lack of legitimacy in the eyes of southern whites. Southern whites had used force and fraud to regain control of politics from the beginning of Reconstruction, and in 1870-71 Congress and the President responded forcefully with Enforcement or Ku Klux Klan acts. However, time eroded northern and Republican willingness to police civil rights in the South. The Republicans lost control of the House of Representatives in 1874, by which time a majority of the confederate states had been “redeemed” by the Democrats. In a parting gesture, the lame-duck Congress enacted the Civil Rights Act of 1875, which outlawed segregation and discrimination in places of public accommodation (other than public schools), going beyond civil and political and into “social” equality.

The Supreme Court stayed out of Reconstruction controversy. It came under the control of Republicans during the war, and treated most Reconstruction issues as “political questions.” When it appeared that the Court might strike down the operation of military tribunals under the Military Reconstruction Act, Congress prevented this by removing its jurisdiction in such cases. While some federal courts displayed a willingness to read Reconstruction statutes and amendments broadly, to facilitate vigorous protection of civil rights, on the whole the judiciary followed the moderate policy of Congress, and followed the national mood into neglect as the century moved on.

The Court first interpreted the Fourteenth Amendment in the Slaughterhouse Cases of 1873. Curiously, this case did not involve the freedmen at all, but was brought by New Orleans butchers who objected to a statute that forced them to practice their trade in a monopoly abattoir chartered by the state legislature. This act, they claimed, deprived them of privileges and immunities due to US citizens, deprived them of liberty and property without due process of law, and denied them the equal protection of the law. The Court denied their claim. The majority held that the principal, if not exclusive, concern of the Fourteenth Amendment was the rights of former slaves. It interpreted “privileges and immunities” in so narrow a fashion as to render it a virtually empty phrase. It did not regard the due process and equal protection clauses to prohibit all “class legislation”—laws, as in this case, that benefited a particular interest group and burdened others. Congress did not intend to deprive the states of their primary supervision of the ordinary rights of citizens, for to do so would be to overturn the federal system and establish a consolidated government. However, the four-man dissenting view, that the amendment did protect a wide range of property rights against state abridgement, would come to be the majority view later in the century.

While the Court did uphold some efforts to prevent blatant legal discrimination against blacks, on the whole it continued to read the Reconstruction amendments in a limited way. Most important, it held that the Fourteenth Amendment prohibited only discriminatory “state action.” While individual deprivation of rights could be prosecuted under the Thirteenth and Fifteenth amendments, a racial motive needed to be proved. In 1883, the Court struck down the Civil Rights Act of 1875. The Court held that the Fourteenth Amendment did not empower Congress to legislate directly for the states, but only to provide modes of relief against discriminatory state legislation. The Court suggested that, if places of public accommodation or states imposed segregation or discrimination, blacks could sue against such “state action.” But, while it left this door open, the Court expressed the flagging concern of public opinion in civil rights. It was time for blacks, the Court noted, to take “the rank of a mere citizen, and [cease] to be the special favorite of the laws….” Only Justice John Marshall Harlan dissented, advocating a more comprehensive view of the Reconstruction amendments.

Later in the century, when southern states began not simply to permit, but to impose, segregation and disfranchisement, the Court permitted it. In part this was due to new personnel on the Court, and to the rise of racism in western thought in general. Southern states began to enact segregation and disfranchisement laws in earnest in the late 1880s, and the Supreme Court upheld them in the 1896 case of Plessy v. Ferguson. At the most basic level, the Court accepted segregation as an ordinary exercise of the police power—in this instance, as a means of limiting disorder that arose from the natural antipathy of the races. Accepting the sociology and psychology of the day, the Court noted that “legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences.” It distinguished between civil and political equality on the one hand, and social equality, on the other. It denied that segregation necessarily imposed any stigma on blacks. Only Justice Harlan dissented, expressing an ideal of equality that formed the basis of civil rights movement of the next century. “In respect of civil rights, common to all citizens, the Constitution of the Untied states does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.” Although Harlan did not doubt that the white race was the “dominant race,” he objected to the effort to maintain its dominance by force of law. “There is no caste here,” he wrote. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” But Harlan was part of dwindling band of racial liberals by the end of the nineteenth century, as Americans had largely turned their attention away from the legacy of slavery and the Civil War, and were preoccupied by the social effects of the rise of industrial capitalism.

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• Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (1978).
• Jacobus ten Broek, The Antislavery Origins of the Fourteenth Amendment (1951).
• Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (1981).
• Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (1970).
• David M. Potter, The Impending Crisis, 1848-61 (1979).
• Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Lincoln-Douglas Debates (1959).
• Mark Neely, The Fate of Liberty: Abraham Lincoln and Civil Liberties (1991).
• Herman Belz, Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War Era (1998).
• Richard F. Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859-77 (1990).
• Herman Belz, A New Birth of Freedom: The Republican Party and Freedmen’s Rights, 1861-66 (1976).
• Herman Belz, Reconstructing the Union: Theory and Policy During the Civil War (1969).
• Herman Belz, Emancipation and Equal Rights: Politics and Constitutionalism in the Civil War Era (1978).
• Michael Les Benedict, The Fruits of Victory: Alternatives in Restoring the Union, 1865-77 (rev. ed., 1986).
• Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863-69 (1974).
• Earl Maltz, Civil Rights, the Constitution, and Congress, 1863-69 (Lawrence, 1990).
• Michael Perman, Reunion Without Compromise: The South and Reconstruction, 1865-68 (1973).
• Michael Perman, The Road to Redemption: Southern Politics, 1869-79 (1984).
• William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (1988).
• Michael Les Benedict, “Preserving Federalism: Reconstruction and the Waite Court,” Supreme Court Review 1978 (1979).

VI: The Constitution and the "Social Question," 1877-1930

In the aftermath of the Civil War and Reconstruction, Americans turned their attention to the astonishingly rapid socioeconomic transformation wrought by the industrial revolution. Rural and small-town America became an urban nation and the greatest industrial power in the world. The stress and strain of this radical shift had profound political and constitutional effects, as statesmen wrestled with what was known as “the social question.” In the last quarter of the nineteenth century, the United States became even more legally and politically liberal or “laissez-faire,” with government’s role largely limited to economic promotion and distribution rather than regulation or redistribution. The crisis of the 1890s, however, marked a shift toward a more ambivalent attitude in political economy, and a gradual shift toward intervention and statism in the “progressive” era. It was not until the more acute crisis of the Great Depression, however, that Americans came to accept the centralized, bureaucratic welfare state.

Parties and courts were the dominant actors in the late nineteenth century American state. Party loyalty and strength was at its height, fueled by ethnic, cultural, and religious identification and by patronage or “spoils” system. The nation was very evenly divided at the national level—the presidency, Senate, and House were almost never in the hands of one party between 1875 and 1897. National politics was largely a matter of distributing the public domain for economic improvement, the railroads being the most notable case of what reformers denounced as the “Great Barbecue,” with no end of bribery and corruption accompanying the development. At the state and local level, legislatures frequently extorted graft from businessmen, and urban “machines” exchanged votes for rudimentary welfare services.

Reformers called for changes that would replace the corrupt party system. Government service, the reformers argued, should be provided by disinterested, nonpartisan experts, trained in the science of “administration.” They touted the virtues of meritocracy and efficiency, while defenders of the status quo denounced them as elitists, who sought to keep the common man out of government and create an American mandarinate. When a disappointed office-seeker assassinated President James A. Garfield in 1881, however, Congress was forced to act. It enacted the Civil Service Act in 1883, providing for competitive exams and merit-based promotion for about 14,000 of the federal government’s 100,000 jobs. By the end of the century this encompassed 100,000 out of 200,000. The act was a modest first step toward changing the personnel policy of the federal administration, in hopes that the government would be better able to deal with new social problems.

These problems grew out of the industrialization of the American economy. While the late nineteenth century US economy was not completely unfettered, it came as close to the classical liberal market model as any in history. This mature, relatively unregulated capitalist economy raised living standards in unprecedented ways, but also displayed new problems. One was the business cycle—while the overall trend showed sustained growth, there were unpredictable periods of boom and bust. Another was increased inequality—while most people were getting richer, some were getting a lot richer a lot faster. In the aggregate and on average, people were better off. But people exist as individuals and groups, many of whom were worse off. And even some individuals who were better off in absolute terms regarded their situation in relative terms. Moreover, the sheer chaos of the transformation was profoundly discomfiting for many. The revolution exacted aesthetic and psychological costs that cannot be calculated. On the whole, the American people believed the price was worth it, but there were always fears and suspicions about the process. The general demand was that government help impose order on the wildly free political economy, to smooth out the business cycle and to reduce inequality and waste.

Historians have described this period as a “search for order,” in which social groups and government tried to control the new world and insulate themselves from the vicissitudes of market competition. Businessmen would be the first to do so, through pools, trusts, and cartels. Farmers would attempt to do so through cooperatives, granges, and political organization in the Populist party. Workingmen would do so through labor unions. These were the first steps toward the twentieth century political system of interest group pluralism.

The railroads, the leading industry of the day, showed many of these problems. While they benefited the economy as a whole, there were some who suffered by their power. Where the roads were competitive, on the main lines, shippers enjoyed low rates. Where the roads had monopoly power, in remote and rural areas, shippers were gouged. Yet the roads needed the short-haul profits in order to make up for long-haul losses. If they could not do so, they needed permission to organize the long-haul traffic in cartels— legally sanctioned schemes to divide the market and fix prices to reduce competition and stabilize profits. State governments attempted to deal with these conflicting needs by railroad commissions, but in 1886 the Supreme Court limited their rate-regulating power as an interference in Congress’ power to regulate interstate commerce. This forced Congress to enact the Interstate Commerce Act in 1887, the beginning of the “fourth branch” of government. It created the Interstate Commerce Commission to ensure “just and reasonable” rates. The commission was of little effect, however, as the federal courts prevented the delegation of legislative power to the commission— particularly that of rate-setting--and then arrogated to themselves the power of reviewing the reasonableness of state legislative rates. It also held that the railroads were not exempt from new federal antitrust laws. Not until the twentieth century did the ICC acquire significant regulatory powers, and the railroads were largely nationalized after World War One.

In most other industries, Americans were more concerned about the lack of competition among giant business combinations. While consumers enjoyed the benefits of large-scale production, small businessmen complained of unfair practices by “monopolies,” and people feared the political consequences of concentrated economic power. Again, the sheer novelty of these giant enterprises provoked disorientation and fear. While states did make some attempts to control businesses that had incorporated within their borders, by the end of the century most had abandoned the effort and began to compete with one another to attract corporations, with the jobs and tax revenue that they brought. In 1889 New Jersey took the decisive step of opening itself to “holding companies”—corporations controlling stock in out-of-state businesses.

Congress responded by passing the Sherman Antitrust Act of 1890. The act applied the common law rule outlawing combinations in restraint of trade to businesses engaged in interstate commerce. Rather than establish an independent administrative agency like the ICC, the act relied on Justice Department criminal prosecutions. The chief limitation of the act was that it did not clearly define what kind of “combinations in restraint of trade” were illegal. This—the great problem of all antitrust law—was due to the economic and political fact that much concentration in industry was the result of efficiency and was beneficial to the public. Moreover, the Supreme Court interpreted the power of the federal government in this area quite strictly. In the prosecution of the sugar trust (US v. E. C. Knight Co., 1895), which controlled about 95% of American sugar refining, the Court applied a literal definition of “interstate commerce.” It was not within the power of the federal government to regulate manufacturing activity that took place within one state, regardless of its scale. In addition, manufacturing activity must have a direct effect on interstate commerce before it could be controlled by the federal government. In the decades after this decision, the US economy underwent a massive wave of mergers, creating the first billion-dollar corporation, US Steel.

In the last decades of the century, constitutional law became more closely allied with liberal or “laissez-faire” principles. The Supreme Court developed new doctrines in several high-profile decisions that caused it to be seen as supporting big business against government regulation. This was a shift away from earlier decisions (such as the Slaughterhouse Cases) that gave broad deference to state exercise of the police power in the economic realm. By the 1890s, though, more laissez-faire justices had been appointed to the Court, and they took a firm stand against the social and political upheaval that erupted during the intense economic depression of 1893. The mid-1890s were agonizing years, marked by agrarian protest, violent industrial strikes, and the formation of the Populist party, which demanded radical changes in the American political economy.

The Court began to use the doctrine of “substantive due process” to protect property rights against state regulation. The traditional understanding of “due process of law” was that persons could be deprived of life, liberty, and property only by regular and fair procedures—by constitutionally and legally established legislative, executive, or judicial action. Substantive due process, on the other hand, meant that there were some rights that were so fundamental that individuals could not be deprived of them even with due process of law. Thus the phrase “substantive due process” was something of an oxymoron. It was in fact judicial application of natural or higher law principles to particular cases, allowing judges to make essentially legislative decisions—determining, for example, what a “reasonable” railroad rate was. The doctrine was adumbrated in Chief Justice Taney’s opinion in the Dred Scott case. An act of Congress that prohibited slavery in the territories “deprives a citizen… of his property, merely because he… brought his property into a… territory…, and… committed no offense against the laws, could hardly be dignified with the name due process of law.” The Fourteenth Amendment applied the due process language of the Fifth Amendment to the states, but the Court rejected a substantive reading of it in the Slaughterhouse Cases. By 1887, the Court suggested that it was reconsidering the principle, and in 1890 it did. The best-known substantive due process case was Lochner v. New York (1905), in which the Court struck down a state law that limited the number of hours that bakers could work. Substantive due process was closely related to another laissez-faire judicial principle, “liberty of contract.” This idea was that individuals were perfectly free to make any legal contract that they saw fit, without interference from any third party, including the state. Thus in 1897 the Court held that Louisiana could not prohibit one of its citizens from purchasing insurance from an out-of-state company. More often, though, liberty of contract was used in labor relations cases, leaving adult males to work for whatever wages and under whatever conditions they might.

There was nothing inherently “conservative” or laissez-faire about these doctrines. In the twentieth century, substantive due process was used in civil rights, feminist, and homosexual rights cases. Moreover, the doctrine was not commonly used to strike down state socioeconomic regulations. However notorious they became, cases like Lochner were few and far between. In most cases, the Court accepted state regulation as reasonable. In hazardous occupations, or where women or minors were involved, the Court also sustained labor restrictions. But it usually drew the line at wage fixing and other labor laws where adult males in ordinary jobs were involved.

As industrialization led to employer-employee disputes in the nineteenth century, the courts also fashioned new instruments to protect property rights and the right to work against organized labor. Unions were legally permitted since the 1840s, despite the fact that they were combinations to restrain trade and raise prices (wages). But in the liberal system of liberty of contract, they had virtually no recourse other than quitting their jobs if they were dissatisfied with their wages, hours, or working conditions. Thus unions attempted to use persuasion, intimidation, and violence to force employers to meet their demands and to prevent non-union workers from taking their jobs during a strike. While union coercion was usually directed at non-striking workers rather than employers, the business of the employer could be ruined by a protracted strike. They thus resorted to equity proceedings. Equity was a legal system separate from that of common law. In English history, there were prerogative courts where special judges (“chancellors”) could provide extraordinary remedies in cases where the common law was oppressive or inadequate. In strikes, employers could not sue a union (they were almost never incorporated), or await suit or prosecution of its individual members. Local law-enforcement officials were often sympathetic to the strikers, and the owner would suffer irreparable harm as he sought legal redress. Judges thus issued injunctions—orders to strikers to desist from interfering in the employer’s business. Preliminary injunctions could be issued quickly, with only the employer’s testimony, without any kind of jury trial. They were effective instruments for foiling strikes. In the dramatic and violent railway strike of 1894, federal court injunctions figured prominently in the defeat of Eugene V. Debs’ American Railway Union. Union leaders were enjoined from interfering with the delivery of the mail and violating the Sherman Antitrust Act. Debs was jailed for violating the order, and the Supreme Court unanimously upheld the conviction in 1895.

To its supporters, the labor injunction protected employers and non-strikers against union violence and preserved individual liberty. To its opponents, the injunction showed the bias of the legal system against organized labor, and unionists put its abolition at the head of their legislative agenda. Like substantive due process, the injunction acted as a kind of legal trump that did increase judicial power. And the twentieth century would show that, like substantive due process, it could be used for progressive causes such as racial integration or women’s rights. It was part of the complaint against an “imperial judiciary” in both eras.

In the same term that it upheld the Debs injunction and halted the sugar trust prosecution, the Court struck down the income tax act. An income tax was one of the demands of the Populists, who believed that the burden of taxation should be shifted from the consumer and laborer to the wealthy. The Democrats enacted one in 1894, to replace revenue lost by a lower tariff. The government had collected an income tax during the Civil War, and the Supreme Court upheld it in 1883. But now, in the midst of agrarian and industrial unrest that some believed presaged revolution, the Court held that income taxes were “direct taxes,” and thus (under Article I, section 9 of the Constitution) must be apportioned among the states on the basis of population. This requirement defeated the purpose of an income tax insofar as it was meant to redistribute income from the few to the many. A poor state and a rich state with equal populations would pay equal amounts of the income tax, making it bear more heavily on the poor. The Court appeared to ignore its own precedents and performed a sort of jurisprudential jiu-jitsu to arrive at its decision. Unlike the Debs and sugar trust cases, the Court was closely divided, 5 to 4, in the income tax cases. It would take the ratification of the Sixteenth Amendment in 1913 to overturn the decision.

But to some degree the judicial conservatism of 1895 was ratified by the election of 1896, in which the Republicans defeated the Populist-Democratic party and began a fourteen-year period of national political hegemony, controlling the presidency and both houses of Congress. The economy recovered, and the nation enjoyed sustained economic growth. At the same time, the trauma of the social and political clashes of the mid-1890s persuaded many American leaders that the country could not endure another such laissez-faire cure. This conviction lay behind the “progressive” movement of the first third of the twentieth century.

Historians have struggled to give a clear definition to the progressive movement. In general, it was a mood among middle-class professionals that order need to be imposed on the chaotic American free enterprise system. Progressives addressed most of the same concerns as the Populists, but did so from a broader base, in a less angry, alienated, and apocalyptic way, for many progressives were themselves the products of the economic system that they sought to reform. Thus, the progressive movement was thoroughly ambivalent, and progressives frequently took opposite sides on many issues, and produced contradictory legislation with often unintended consequences. But the one unifying theme of progressivism was statism: at one level or another, progressives called for increased governmental power to deal with social problems. It was in this period that the term “liberal” was inverted from its nineteenth century laissez-faire to its twentieth century big-government definition.

Progressives usually favored the expansion of executive power, seeing nineteenth century politics dominated by legislatures and courts, and above all by corrupt parties in cahoots with business interests. Woodrow Wilson, an academic political scientist before entering politics, was a pivotal progressive theorist. Wilson was the first prominent thinker to argue that the founders’ constitutional system had become obsolete and needed to be radically altered. Reflecting the evolutionary ethos of the era, Wilson argued that a constitution was an organism that must grow and adapt, or die. “The makers of our federal Constitution,” he wrote, “were scientists in their way—the best way of their age…. They constructed a government as they would have constructed an orrery, to display the laws of nature. Politics in their thought was a variety of mechanics…. The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.” Federalism, separation of powers, checks-and-balances—the various devices by which the Constitution limited government power— now rendered the government incapable of dealing with contemporary problems. “All that progressives ask or desire is permission—in an era when ‘development,’ ‘evolution,’ is the scientific work—to interpret the Constitution according to the Darwinian principle.”

Behind the progressive reconsideration of nineteenth century constitutionalism lay a related legal and judicial philosophy that also sprang from evolutionary-historicist roots. Nineteenth century judicial liberals adhered to the “declaratory theory of law.” They believed that fixed, absolute, transcendent standards of right and justice existed, and that the Constitution reflected them, and that judges simply applied the Constitution to particular laws and cases. This was the perennial natural law theory that law is discovered, not made. Progressive critics responded that such jurisprudence provided an open-ended pretext for judges to defend whatever social, political, and economic interests that they preferred. Progressive legal theorists embraced instead the theory of “legal positivism,” in which law was not some external standard, but simply the “will of the sovereign.” They thus bridled at a judiciary that claimed to trump the will of the sovereign people expressed in legislation. Legislatures quite properly made, altered, and adapted law to changing circumstances, and should not be foiled by judges who appealed to a nonexistent standard.

The principal expositor of American legal positivism was Oliver Wendell Holmes, a Massachusetts judge whom President Theodore Roosevelt appointed to the Supreme Court in 1902. “The life of the law has not been logic, it has been experience,” Holmes wrote in his classic work, The Common Law (1880), expressing the evolutionary anti-formalism of the day. Thus Holmes dissented against the Court’s natural law or substantive due process decisions. It was not the role of judges to overturn social experiments that the people desired, however unwise they might be.

Many progressives agreed with Holmes, and saw the chief problem as judicial review per se. Thus they focused on efforts to limit the power of the courts to overturn legislation. Others argued that progressives should accept the quasi-legislative role of the judiciary and attempt to persuade judges in the same way that they persuaded legislatures. Progressive lawyers like Louis D. Brandeis accumulated heaps of social data and presented it to courts to show the reason for socioeconomic regulation. The “Brandeis brief” in the 1908 case of Muller v. Oregon demonstrated the social ills that resulted from the long hours worked by women in laundries. This shift of adjudication from natural law principles to social facts became known as “sociological jurisprudence” and became the favored progressive judicial philosophy. It showed that “Social Darwinism” was not inherently conservative, but could be used for reform purposes.

More radical was the theory of “legal realism,” which taught that judges consulted neither eternal principles nor social facts but merely their own social, class, or political interests and prejudices. It was similar to the Marxist belief that law was simply an instrument of bourgeois rule and a mask for class hegemony. Later in the twentieth century this theory was applied to feminist and racial theories, known as “critical legal studies” or “critical race theory.” Philosophically speaking, legal realism was altogether opposed to the idea that law had any reality at all, and is perhaps better identified as “legal nominalism.” In any case, these theories did not circulate far outside of the circles of certain law schools, and were seldom explicitly expressed in judicial decisions.

At a more practical, political level, progressives argued that the Constitution had been taken over by nefarious “interests”—primarily big business and party machines— and the progressives aimed to restore it to “the people.” In characteristically paradoxical fashion, they proposed to extend the political power of the people while they took problems “out of politics.”

Progressives extended democracy by a variety of devices. Most important was the direct election of US senators in the Seventeenth Amendment. This amendment was a slap at state legislatures, which progressives believed to be controlled by corrupt party machines. It did away with one of the basic federal features of the original constitution, the idea that the senate represented the states qua states. The Nineteenth Amendment similarly extended democracy by giving the women the vote in states that had not already done so. Progressives also pressed for direct primaries, to give voters rather than party bosses the ability to select candidates. They pushed for the secret (“Australian”) ballot and to allow voters by petition to initiate legislation and to recall officeholders, and to ratify legislation or constitutional amendments by referendum. Progressives also called for greater municipal home rule, to free cities from state legislative control. Yet, the result of the innovations was a marked decline in voter participation, an indication that the nineteenth century party system did play a significant role in mobilizing a mass electorate. In addition, many progressive electoral reforms were intended to reduce the influence of groups that the progressives mistrusted. The movement to disfranchise blacks and poor whites in the South was a progressive cause, since these voters were considered to be easily corrupted. Similarly, progressives sought to reduce the power of immigrant voters in northern cities by ending traditional mayor and alderman-city council systems.

Of greater impact in the long run was the progressive desire to increase the power of the executive branch, the US presidency and administrative branch especially. They saw the president as capable of rising above interest and party and embodying the people as a whole. Theodore Roosevelt, at least rhetorically, set the tone for strong twentieth century presidents. He engaged in dramatic confrontations with powerful business interests, as when he blocked the Northern Securities railroad consolidation. He also used the influence of his office (the “bully pulpit”) on behalf of the Untied Mine Workers in the 1902 anthracite coal strike. Impatient with the recalcitrant mine owners, Roosevelt threatened to seize the mines and use the army to operate them. When a congressman pointed out that the Constitution provided no such power to the federal government, Roosevelt thundered, “To hell with the Constitution when the people want coal!”

Roosevelt particularly called for administrative regulation of big business, beginning with the Bureau of Corporations, established in 1903. The ICC gained new powers during his presidency. Roosevelt recognized the economic and political fact that business concentration was often advantageous and that the public did not want to forego its benefits. While other progressives favored more vigorous antitrust prosecution to break up corporations, on the belief that bigness was inherently bad, progressives in general favored putting more power in the hands of bureaucratic experts. This reflected the fact that many progressive leaders were themselves the products of an increasingly educated, trained, credentialed, professional and managerial class. Various groups in America were moving toward the establishment of higher professional standards, organization and self-government. The American Medical Association, American Bar Association, and others attempted to raise the level of expertise of their professions and to gain influence in public policy, as were farm and labor organizations. To some degree, all were following the lead of the business corporation. Even historians formed a professional association in 1887. Woodrow Wilson was among the first Americans to earn a Ph.D. degree in political science, another sign of professionalization. (Theodore Roosevelt served as president of the American Historical Association, but usually berated the professionals and defended amateur history.) In politics, progressives hoped that a trained civil service would be free of the sordid interests that controlled the party-legislative system. They also sought to draw power away from the courts, the traditionally non-partisan branch of government that the progressives regarded as politicized. Laying the groundwork for the centralized bureaucratic state, the progressives took as their models the English civil service or Prussian bureaucracy, but believed that they could be maintained without their aristocratic or autocratic features. As it grew, the “fourth branch” of government would pose constitutional problems related to the delegation of legislative powers to the executive branch, the bureaucracy’s relationship to the judiciary, and contests between Congress and president for control of it.

Congress began to provide for an expanded federal role in socioeconomic regulation in the early twentieth century. In 1898, hoping to avoid another catastrophic national railroad strike, it passed the Erdman Act, which provided for federal mediation of labor disputes in interstate railroads. The act also prohibited railroads from discriminating against union members and outlawed the “yellow-dog contract,” in which an employee agreed never to join a union when hired. These allowed employers to fend off union organizers, who would be attempting to induce a breach of contract by recruiting workers who had signed them. Congress also established what amounted to a “federal police power”—regulating public safety, health, welfare and morals, which had been traditionally reserved to the states. The Court accepted a congressional ban on the sale of lottery tickets across state lines as a legitimate exercise of the interstate commerce power. It also upheld a similar act that prohibited the transportation of women across state lines for immoral purposes (the Mann “white slave act”). Congress also succeeded in enacting the Pure Food and Drug and Meat Inspection Acts. It used the taxing power to impose a prohibitive duty on colored oleomargarine, on the grounds that it was often fraudulently sold as butter. Apparently enacted in the public interest and for consumers, these acts also served the interests of business. The large meatpackers, for example, supported the Meat Inspection Act as a way to run small packers out of business, and the dairy lobby sought to eliminate oleo competition.

Progressivism reached its apex during the Wilson presidency and World War One. The Republican party split in 1912, with Roosevelt running as a third-party progressive or “Bull Moose” candidate. Roosevelt ran on a platform that he called the “New Nationalism,” essentially a program of state socialism similar to that of Bismarckian Germany. Wilson challenged it with what the called the “New Freedom,” which would use government power to restore individualism and competition. With the Republicans divided, the Democrats were able to take control of the federal government for the first time in twenty years. Wilson exercised the powerful executive leadership that he advocated, returning to the Federalist practice of appearing personally before Congress. He led the legislature to enact a lower tariff and an income tax. A new antitrust act attempted to be more specific about what sort of combinations were illegal, and contained exemptions for farm and labor organizations. The act also curbed the power of federal courts to issue injunctions in labor disputes; American Federation of Labor president Samuel Gompers called these provisions of the Clayton Antitrust Act “labor’s magna carta.” But the act had little impact and, at the same time, Congress created the Federal Trade Commission to promote government-business cooperation, along Rooseveltian New Nationalist lines.

As a minority president, Wilson needed a firmer base in his re-election campaign of 1916, so he tried to assume leadership of the progressive movement, now that Roosevelt had reconciled with the regular Republicans. Wilson made the bold move of appointing Louis D. Brandeis, a leading progressive lawyer and legal realist and his adviser on economic matters, to the Supreme Court. In addition to possessing a controversial judicial philosophy, Brandeis was a Jew, the first to serve on the Court after a heated confirmation fight. Wilson also dropped his opposition to a federal prohibition of child labor, which he heretofore regarded as a state matter, and signed a bill banning the shipment of goods manufactured by child labor in interstate commerce. As the Great War in Europe extended into its third year, Wilson maintained the policy of neutrality and his campaign boasted that “He kept us out of war.” At the same time, the government began to take steps to prepare for possible intervention. The railroad unions took this opportunity to demand an eight-hour day, and threatened to cripple the national transportation network if not satisfied. Wilson went to Congress and induced it to enact legislation imposing the eight-hour day in railroad employment, solidifying the coalition of organized labor with the Democratic party.

Wilson won a very close re-election in 1916. A month after his second inauguration, he asked Congress to declare war on Germany, which had begun a campaign of unrestricted submarine warfare in January. The war was a formative experience for twentieth century progressives and liberals, for it showed that people would accept extraordinary government power in extraordinary circumstances. Many New Dealers cut their teeth in the wartime administration, including Assistant Secretary of the Navy Franklin D. Roosevelt. Conscription returned for the first time since the Civil War, and nearly three million men were drafted into the armed forces. Once the state had compelled so many to risk life and limb, the command of property was of no great moment. As the European powers had already done, the US constructed an economy of war socialism. The government controlled the price and distribution first of food and fuel, and then of anything else related to the war effort. It nationalized the railroads, and imposed income tax rates up to 73%. Antitrust sentiment was discarded as only the biggest producers could provide the necessary materiel of war. Congress created innumerable regulatory agencies and delegated extraordinary control over these agencies to the president. The government orchestrated a campaign of pro-war propaganda, along with surveillance and censorship of dissidents. Finally, Congress enacted a Sedition Act for the first time since 1798, and jailed anti-war advocates. The traditional constitutional limitations on government power that Wilson and Roosevelt complained about disappeared in wartime, and seemed to confirm Randolph Bourne’s observation that “war is the health of the state.” In decades ahead progressives would search for what William James called “the moral equivalent of war.” They would find it in the Great Depression that began in 1929.

Reaction against progressivism had already begun during the war. The Republicans won control of Congress in 1918 and of the presidency in 1920, and controlled the federal government for the entire decade. But these years evinced no return to nineteenth century laissez-faire policy. The Republicans, like much of the nation, were torn by ambivalent attitudes about economic freedom and government regulation. The fundamental institutional achievements of the progressive years remained intact and often grew. The Republicans reduced income tax rates, but maintained the tax itself. They returned the railroads to private ownership, but under restrictions that amounted to a government-sanctioned public utility cartel. Moreover, Congress in the Railway Labor Act of 1926 laid the groundwork for the New Deal’s pro-union policy. Perhaps the outstanding instance of progressive continuity in the 1920s was the effort to enforce the Eighteenth Amendment, which prohibited the manufacture, sale, or transportation of alcoholic beverages. While progressives were no more united on this issue than they were on most others, the movement toward prohibition made great strides in the states in the years before World War One. During the war, the government imposed prohibition as part of its regulation of the food and fuel supply. It was perhaps the most ambitious effort of federal police power ever undertaken, and its colossal failure showed the limits of statism.

Herbert Hoover, Secretary of Commerce from 1921 until his election to the presidency in 1928, was especially energetic in building federal power. Hoover embraced what he called the “New Individualism,” and what historians have termed “Associationalism” or “Corporatism.” He rejected laissez-faire as wasteful and disorderly, and advocated business-government cooperation on voluntary lines. The federal government would do all that it could to promote business standards, to stabilize markets, prices, and profits, and to eliminate “cut-throat” competition. But Hoover drew the line at government coercion or enforcement of such standards. He believed that his policy was a median between fascism and socialism. Thus the federal government tried to aid “sick industries” like agriculture, coal, and lumber, as well as to organize fledgling industries like radio, aviation, and motion pictures. It also helped the states to make improvements in transportation and education through “grants-in-aid,” making funds available to states if they met certain federal standards and provided a matching share. But the Republicans refused to provide direct subsidies or give price-fixing power to agricultural cooperatives, or to build and operate power plants, for example.

Despite the historical legend that Hoover reacted in laissez-faire fashion to the onset of the Great Depression in 1929, he in fact took unprecedented steps to combat it. Indeed, the degree to which the economic collapse and its continuation were the results of government policy—such as inept manipulation of the money supply by the Federal Reserve System and higher tariffs—remains a lively question among economic historians. Hoover accepted responsibility for the condition of the economy, and pursued many policies that adumbrated the New Deal. The most significant of these was the establishment of the Reconstruction Finance Corporation, which lent billions of dollars to banks and utilities, in order to prevent their failure. Hoover similarly induced businessmen to pledge not to cut wages unless compelled to do so. This “high wage policy” was intended to maintain labor and consumer confidence, and was praised by labor leaders, but probably exacerbated the unemployment plague. But to the end he refused to use direct government power to set prices and wages, or to provide direct welfare payments to the unemployed. Far from the last laissez-faire president, Hoover was the quintessential progressive, who remained ambivalent about the limits of government activism in the midst of an economic crisis that swept away the qualms of most Americans.

The Supreme Court’s position was similar to Hoover’s. Until 1937 it continued to use nineteenth century doctrines such as dual federalism, substantive due process, and liberty of contract to place limits on government economic regulation, although it more often approved of such acts. It struck down the maximum-hours law for bakers, but upheld similar laws for miners and women workers. The Court struck down the Erdman Act’s prohibition of yellow-dog contracts as a violation of liberty of contract, and similarly overturned state attempts to outlaw them, but it upheld the imposition of the eight-hour day and the Railway Labor Act. During the war, it upended congressional prohibition of child labor by both the commerce and taxing power and, in an equally controversial and closely-divided decision, struck down a minimum-wage law for women in Washington, DC. It similarly gutted the pro-union provisions of the Clayton Antitrust Act, allowing the issue of labor injunctions by federal courts. Thus, as the political branches responded to a groundswell of popular demand for vigorous economic action, the Supreme Court remained divided and out of step.

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• Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America (1977). Loren P. Beth, The Development of the American Constitution, 1877-1917 (1971). Christopher Wolfe, “Woodrow Wilson: Interpreting the Constitution,” Review of Politics 41 (1979).
• Leonard D. White, The Republican Era: A Study in Administrative History, 1869-1901 (1958).
• Richard Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859-77 (1990).
• Steven Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (1982).
• Barry Dean Karl, The Uneasy State: The United States from 1915 to 1945 (1983).
• Paul Kleppner, The Third Electoral System, 853-92: Parties, Voters, and Political Cultures (1979).
• Samuel P. Hays, The Response to Industrialism, 1885-1914 (1957).
• Edward L. Ayers, The Promise of the New South: Life After Reconstruction (1992).
• Robert H. Bork, The Antitrust Paradox: A Policy at War with Itself (1978).
• Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-95 (1960).
• William F. Swindler, Court and Constitution in the Twentieth Century: The Old Legality, 1889-1932 (1969).
• Edward S. Corwin, Liberty Against Government: The Rise, Flowering, and Decline of a Famous Juridical Concept (1948).
• Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government (1987).
• Thomas K. McCraw, ed., Regulation in Perspective: Historical Essays (1981).
• Robert L. Wiebe, The Search for Order, 1877-1920 (1967).
• Ellis Hawley, The Great War and the Search for a Modern Order: A History of the American People and Their Institutions, 1917-33 (1979).
• Alexander M. Bickel and Benno C. Schmidt, The Judiciary and Responsible Government, 1910-21 (1984).
• Paul Kens, Judicial Power and Reform Politics: The Anatomy of Lochner v. New York (1990).
• Mark Warren Bailey, Guardians of the Moral Order: The Legal Philosophy of the Supreme Court, 1860-1910 (2004).
• James Herget, American Jurisprudence, 1870-1970: A History (1990).
• Morton White, Social Thought in America: The Revolt Against Formalism (1949).
• Bernard H. Siegan, Economic Liberties and the Constitution (1980).
• Christopher L. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960 (1985).
• George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (2002).
• David M. Tucker, Mugwumps: Public Moralists of the Gilded Age (1998).

VII: The New Deal Era, 1930-60

Franklin D. Roosevelt had given little indication during the 1932 election campaign of what his agenda as president would be. The Democratic platform contained nothing provocative, and FDR added little to it apart from a speech to the Commonwealth Club in San Francisco, in which he spoke of the advent of “enlightened administration,” which would redistribute resources in accordance with an “economic declaration of rights.” But Roosevelt called for extraordinary efforts in his first inaugural address. He desired that the federal government provide employment in public works projects, “treating the task as we would treat the emergency of a war.” He continued the martial metaphor, saying that “if we are to go forward, we must move as a trained and loyal army willing to sacrifice for the good of a common discipline,” depicting the struggle ahead as requiring a “sacred obligation” and a “unity of duty hitherto evoked only in time of armed strife.” He suggested that it might be necessary to concentrate power in the executive branch, and to ask Congress for “broad executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.” He was undaunted by traditional constitutional limitations on federal power, for “Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form.”

Roosevelt immediately dealt with the nationwide banking crisis by closing all American banks, under the authority of the World War I “Trading with the Enemy Act.” Congress shortly enacted banking legislation, devalued the dollar by reducing its gold value in foreign exchange, as well as requiring all gold in domestic hands to be exchanged for devalued dollars, and canceling gold clauses in public and private debts. Employment and public works programs, most notably the Tennessee Valley Authority, were also quickly enacted.

Most ambitious of all were the Agricultural Adjustment Act and the National Industrial Recovery Act. Both of these were attempts to “cartelize” the American economy—that is, to give private producers government power to control production and prices. Farmers were permitted to reduce production of certain crops, and would be given benefit payments for doing so, paid for by a tax on processors of the crops. To emphasize the war-like circumstances behind the statute, Congress declared an “economic emergency,” and announced that the act provided for “extraordinary expenses” produced by it, and provided for “emergency relief” for farmers. The NIRA allowed industries to adopt “codes of fair competition,” and the government could fine or imprison firms that produced more or charge less than the codes provided. The act contained a provision that required employers to bargain collectively with their workers, but this was largely evaded by the establishment of employer-dominated “company unions.” The NIRA appeared to establish nothing less than an American-style corporate or fascist political economy, but the statute was limited to two years, and there was virtually no chance that it would succeed.

The Supreme Court initially showed considerable deference to the new state and federal economic regulations. It accepted a Minnesota law that placed a moratorium on mortgage foreclosures, although this was precisely the kind of debtor-relief legislation that was common during the 1780s and produced the Constitution’s prohibition on state laws “impairing the obligation of contracts.” It also upheld a New York statute that set minimum prices for milk, and sustained the federal government’s cancellation of gold obligations in contracts. Notably, all of these decisions were made by 5-4 majorities. The Court was composed of three liberals (Justices Brandeis, Stone, and Cardozo), four conservatives (Justices McReynolds, Butler, Van Devanter, and Sutherland, whom New Dealers christened “the Four Horsemen”) and two swing votes, Chief Justice Hughes and Associate Justice Roberts.

In 1935 and 1936, the Court struck down the Agricultural Adjustment Act, National Industrial Recovery Act, and similar acts regulating the petroleum and coal industries. The fundamental problem with these acts was that they exceeded Congress’ delegated powers, and usurped the reserved powers of the states to deal with industrial production and labor relations. They were further vitiated by the fact that Congress had delegated legislative power to the President, who in turn delegated that power to private parties. The decision striking down the NIRA was unanimous; even Justice Cardozo conceded, “This is delegation run riot.” The Court added to the impression of conservative reaction when it struck down a New York law that set minimum wages for women and minors. This decision was based on old substantive due process and liberty of contract grounds, long disdained by progressives. Justice Roberts similarly gave voice to traditional constitutional theory when he noted that the Court was not making law, but only “lay[ing] the Article of the Constitution which is invoked beside the statute which is challenged and [deciding] whether the latter squares with the former.”

FDR and Congress were unfazed by these judicial setbacks, and embarked upon what is known as the “Second New Deal” in 1935. Though they abandoned the impossible task of comprehensive national economic coordination, they proceeded to promote cartels in an piecemeal, industry-by-industry fashion. Congress thus virtually reenacted the Agricultural Adjustment Act as a soil-conservation measure, without the tax on commodity processors. It took the section of the National Industrial Recovery Act meant to promote organized labor and enacted the National Labor Relations, or Wagner, Act. This act compelled employers to recognize and bargain with unions certified by the National Labor Relations Board as representing a majority of their employees. Many congressmen voted for the measure to head off more radical measures and to placate organized labor, assuming that the Court would strike it down. Congress also passed the Social Security Act, proving for old-age pensions and disability insurance. Though the President made passing objections to the Court’s obstruction of New Deal legislation, he and the Democrats largely ignored it as a campaign issue. In the 1936 election, FDR was re-elected by the greatest majority in American history, and the Democrats increased their control of Congress for the fourth consecutive term, with nearly three-fourths of both houses. The stage was set for a showdown between an overwhelmingly popular liberal president and a narrowly divided conservative court.

The President announced a judicial reform proposal in February, 1937. He identified the age of the justices as the chief problem, resulting in their inability to keep up with their workload or with new social and economic circumstances. “Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation,” Roosevelt claimed. He asked Congress to allow the president to appoint an additional federal judge for each judge who reached the age of seventy and did not retire, to a total of fifty, with the Supreme Court expandable to fifteen. This would give him power to appoint six new Supreme Court justices right away.

Roosevelt’s “court-packing plan” was an astonishing gambit. If the president was emboldened by his electoral triumph of 1936, he squandered his mandate with this bid for executive control of the judiciary. Combined with other efforts by the president to control the bureaucracy and the Democratic party, and the specter of totalitarianism in Europe, the plan shifted public opinion from concern about the abuse of judicial power to the abuse of executive power. Congressional resistance was immediate and intense, dooming the proposal from the start and marking the first significant legislative resistance to FDR’s leadership. The conflict marked the effective end of the New Deal, as Republicans and conservative Democrats began to block liberal legislation.

The reason for the plan faded as the Supreme Court appeared to back down and accept New Deal legislation in 1937. In fact, Justice Roberts, the fifth vote in recent conservative decisions, had “switched” before the unveiling of the court-packing scheme. In March, the Court upheld a Washington minimum wage law just a year after having struck down a nearly identical New York statute. Pro-New Deal decisions soon swelled into a torrent, with the Court upholding the National Labor Relations and Social Security Acts, preserving the principal legislation of the Second New Deal. In May, Justice Van Devanter announced his retirement, as did his conservative colleague George Sutherland in 1938. By the time of his death in 1945, Roosevelt had appointed every member of the Court except for Justice Roberts. In short, FDR packed the Court in the conventional way. But his bold plan to take it over effectively ended the momentum of the New Deal.

After 1937, there were virtually no judicial limits on federal or state economic regulation. The Court repudiated the two principal doctrines used to protect property rights, dual federalism and liberty of contract. Congress had nearly unlimited power to regulate business by the taxing, spending, and especially the interstate commerce powers. In 1942, the Court upheld a fine imposed upon an Ohio farmer who grew more wheat than he was permitted under the revised Agricultural Adjustment Act, although he sold no wheat in the open market and used the wheat for home consumption, livestock feed, and seed. Thus “interstate commerce” could be interpreted to include nearly any economic activity, including intrastate production that never entered into commerce at all.

The Court articulated its new deference to political regulation of property in the 1938 case of US v. Carolene Products, in which it upheld a congressional prohibition of interstate commerce in “filled milk.” The Court would from now on assume that legislatures had good reasons for regulating commerce. “The existence of facts supporting the legislative judgment is to be presumed,” Justice Stone said, in cases involving “ordinary commercial transactions.” In economic regulation, the Court would assume that legislation “rests upon some rational basis within the knowledge and experience of the legislators.” That is to say, the Court would accept any but the most wildly irrational basis for economic regulation.

At the same time, the Court appended a prophetic footnote to its decision that suggested that the Court, while it was getting out of the business of protecting property rights, might get into the business of protecting non-property rights. “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth,” Justice Stone wrote. “It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. The note also suggested that the Court would scrutinize “statutes directed at particular religious, or national, or racial minorities,” and also be alert to “prejudice against discrete and insular minorities [which] may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”

The Court announced another apparent act of self-denial the next year. In the case of Erie Railroad v. Tompkins, the Court declared that federal courts must adhere to the common law of the states when they decide lawsuits between citizens of different states. Ever since 1842, the Court had held that federal judges could consult general principles of commercial law in such cases, and thus build up a federal common law. In this case, Justice Brandeis vehemently overturned that 1842 precedent, even declaring it unconstitutional. But at a deeper level, Erie Railroad could augment rather than limit judicial power. The disavowal of a federal common law was principally a legal positivist repudiation of the idea of natural law. If law was nothing more than the will of the sovereign, courts cold not claim to consult principles to thwart legislatures. But if this precept of legal positivism were combined with the legal realist argument that judges, like legislators, make law, it would provide a wide avenue for judicial power (or judge-made law), unrestrained by even the pretense of natural (or judge-discovered) law.

The demise of liberty-of-contract, and its closely related doctrine of substantive or economic due process, gave greater powers to the states to deal with socioeconomic problems. But the potential expansion of state police power was largely pre-empted by federal action. States might now be free to enact labor laws, but there was little need to do so after the Court upheld a federal Fair Labor Standards Act. Indeed, the greatest long-term constitutional result of the New deal was the concentration of power in the national government and the near end of federalism as a limit on government power.

Institutionally, the greatest effect of the New Deal was the development of a centralized bureaucratic state. The emergence of the administrative “fourth branch” of government, envisioned in progressive theory and gradually developing since 1887, shot into flower in the 1930s. The sheer proliferation of federal regulatory agencies would have necessitated some form of reorganization in any case, but the Supreme Court added urgency to the task when, in 1936, it ruled that the president could not remove members of independent regulatory agencies like the Federal Trade Commission. The president, stung by this judicial limitation on executive direction of the government, assembled the President’s Committee on Administrative Management. Congress took up a bill containing the recommendations of the Brownlow Committee in January, 1937: to expand the White House staff, to create new and reorganize existing branch agencies, and to give the president direct control over the independent agencies. The furor over the Court-packing plan, introduced the next month, produced an anti-executive reaction that effectively killed the Brownlow plan in 1938.

1938 produced an enormous political upheaval against the New Deal. In 1937, the country lapsed into a recession even sharper than that of 1929, and there was a widespread public backlash against labor union militancy in the “sit-down strikes” that followed the enactment of the National Labor Relations Act. The fear that Roosevelt aspired to dictatorial power, raised by the Court-packing and administrative reorganization plans, was reinforced by his efforts to defeat conservative Democrats in the 1938 primaries—this effort suggested that FDR was “purging” the party. In March, 1938, Roosevelt told the press, “I have no inclination to be a dictator. I have none of the qualifications which would make me a successful dictator.” The Republicans gained 75 seats in the House of Representatives and seven in the Senate, arresting the drift toward a one-party state. In 1939 the new Congress passed the Hatch Act, which limited partisan political activities by federal officeholders.

Arrested by the Supreme Court, Congress, and the electorate, executive power was checked and the US did not become a fully-fledged, European-style corporate, fascist, or socialist state. The New Deal produced what has been called a “mixed economy,” with a regulated system of private enterprise. The extent of government intervention in the economy would continue to be a matter of political wrangling, with extensions proposed and accomplished in subsequent decades, particularly in the 196070s.

International crisis loomed as the domestic New Deal expired. At heart a Wilsonian internationalist, Roosevelt was cautious and deferential to popular and congressional isolationism in his first term. He treated the economic depression as a national problem and, when the threat of a new European war arose, signed neutrality legislation to prevent American trade from entangling the country in it. Meanwhile, the Supreme Court cleared a wide field for the vigorous use of executive power abroad. What the Court denied Roosevelt with regard to domestic bureaucratic control it supplied in foreign affairs. In the 1936 case of US v. Curtiss-Wright Export Co., the Court upheld the president’s imposition of an arms embargo on warring states in South America. The Court adopted the Hamiltonian view of plenary, unenumerated executive power. Though in this case the president acted after a congressional resolution, Justice Sutherland held that presidential power in foreign relations “does not require for its exercise an act of Congress.”

As isolation began to erode in American public opinion, particularly after the fall of France in 1940, Roosevelt became more bold. In September, 1940, he gave a number of destroyers to the British in exchange for leases on bases in the western hemisphere. There was no congressional resolution for this act, and it appeared to violate a 1917 statute, but FDR prevailed on the basis of public opinion that supported “all aid short of war” for Great Britain. The president used the US Navy to assist in the shipment of supplies to Britain, which sparked armed conflict with the Germans. Perhaps most remarkably, Roosevelt signed the “Atlantic Charter” with Prime Minister Winston Churchill in August, 1941. While technically neutral, the US pledged to work with the allies to promote international freedom, peace and order “after the final destruction of Nazi tyranny.” Ardent American pressure upon the Japanese to cease their depredations in China led them to attack the United States in December. Roosevelt’s principal concern was the European theater, and Germany was under no obligation to come to the aid of Japan. But, for some reason, Hitler did FDR the favor of declaring war on the US after Pearl Harbor.

As World War I extended progressive statism, so World War II acted as a nationalizing extension of the New Deal. War again brought conscription, high taxes, wage and price limits, industrial and labor controls. But, an overwhelmingly popular war, World War II did not produce many serious constitutional conflicts regarding opposition and civil liberties. The Supreme Court did overturn the military government imposed on Hawaii, but not until after the war was over. Even after the war, the Court did not overturn the most prominent abridgement of civil liberty since the Civil War, the evacuation and internment of over one hundred thousand Japanese-American citizens on the Pacific Coast. Though the Court technically avoided ruling on the most controversial aspects of the program, it seemed to provide a Hobbesian lesson that, in extremis, law, constitutions, and judges provide little protection to unpopular groups and individuals.

It was not until the 1950s and especially the 1960s, after the early, most dangerous phase of the Cold War abated, that the Supreme Court became a vigorous leader in expanding the rights of individuals and certain minority groups. But there was a long if desultory history of federal judicial protection of non-property rights since the Civil War. The Reconstruction amendments did impose some limits on deprivation of black civil rights. The Court struck down a West Virginia law that excluded blacks from jury service in 1880, as well as overturning the conviction of a black man in a Delaware case where, although no law discriminated against them, the judge excluded blacks from the jury. In 1886 it struck at de facto discrimination against Chinese Americans, when San Francisco officials administered an ordinance to prevent fire hazards--racially neutral on its face--in order to run the Chinese out of the laundry trade. The Court’s scrutiny of state socioeconomic regulation helped to prevent exercises of the police power that were actually pretexts for racial, ethnic, or religious discrimination.

Even after the Court upheld racial segregation in 1896 it drew the line at more outrageous methods of discrimination. It struck down debt peonage laws in the South that attempted to prevent black exit from the plantation labor force. When southern states tried to tailor disfranchisement to blacks, by allowing poor whites to vote if they had ancestors who could vote before Reconstruction (“grandfather clauses”), the Supreme Court overturned these schemes. The Court also struck down an Arizona statute that limited public employment to citizens. During World War One, border states attempted to control the influx of blacks in the early stages of the “Great Migration” with residential segregation ordinances. The Court struck these down on property rights grounds, thus preventing a formal system of apartheid.

As the Court usually upheld state socioeconomic regulation, it also usually validated state and local cultural norms. Its sensitivity to the constitutional principle of federalism, the chief limit to an energetic enforcement of the Reconstruction amendments, was the principal reason for this. The original reason for the Bill of Rights was not so much to protect individual liberty as it was to leave the regulation of these matters to the states. The states in turn often left these matters to counties, towns, churches, and families—the intricate network of intermediary associations today referred to as “civil society.” This reflected the older traditional of republicanism, in which liberty meant the power to define and enforce a community’s understanding of morality. Usually, unorthodox individuals or groups had either to conform to community norms or leave—and were sometimes compelled to leave, as in the case of the Mormons. But, America was a large enough country to accommodate a large number of communities. Thus, the United States has been described as “islands of intolerance in a sea of toleration,” a sprawling, pluralistic collection of communities. Even within this system the variety was limited, as nearly all communities assumed a traditional Judeo-Christian moral code that reached its climax in the Victorian era.

If “laissez-faire” constitutionalism did not frequently vindicate non-property rights, progressive principles did even less so. Progressives for the most part were suspicious of the natural theories that underlay judicial activism, and favored legislative experimentation and governmental power. Justice Oliver Wendell Holmes was the most articulate advocate of the theory that judges should not thwart legislative innovation with natural law, which he derided as a “brooding omnipresence in the sky.” Thus, he nearly dissented when the Court struck down municipal segregation laws. In 1927, he upheld a Virginia statute that imposed compulsory sterilization on the mentally retarded. The state described Carrie Buck, a feeble-minded rape victim who had committed no offense against the laws, as part of the “shiftless, ignorant, and worthless class of antisocial whites.” Buck’s mother and daughter were similarly regarded. Holmes, renowned for his pithy aphorisms, was satisfied, concluding, “Three generations of imbeciles are enough.” Roughly twenty thousand Americans underwent compulsory sterilization in the twentieth century.

When Congress enacted the Espionage and Sedition Acts during World War One, the Court sustained them. It unanimously upheld the Espionage Act in Schenck v. US, in which Justice Holmes expressed the principle that freedom of speech was not absolute. People could rightly be punished for “falsely shouting ‘fire’ in a theater, and causing a panic,” he said. If words were used in a way that “create a clear and present danger that they will bring about… substantive evils,” they could be restricted. The Court also upheld the Sedition Act, but in these cases Justices Holmes and Brandeis dissented, denying that criticism of the war effort amounted to a clear and present danger. The dissents were the beginning of modern federal jurisprudence regarding free speech and press.

The Court in the 1920s continued its haphazard defense of civil rights and liberties. The nativism of the postwar decade led Oregon to outlaw private education (aimed primarily at Catholics) and Nebraska to prohibit the teaching of modern foreign languages (Germans). The Court struck down these laws on essentially substantive due process grounds—the property rights of the schools and the right of parents to decide how to educate their children. More important the Court took the first steps toward what is known as the “incorporation” of the Bill of Rights. The traditional understanding of the Bill of Rights was that it limited only the federal government. Though there is some evidence that the framers of the Fourteenth Amendment intended to apply the first eight amendments of the Bill of Rights to the states, the courts did not so interpret it. The Supreme Court did in 1897 hold that the Fifth Amendment’s prohibition on taking private property for public use without just compensation applied to the states, but did not develop the principle. Instead, it held that, for example, while federal courts could not impose double jeopardy, state courts remained free to do so.

Incorporation of the free speech provision of the Bill of Rights began in the 1925 case of Gitlow v. New York. In this case, the court upheld a state law criminalizing the advocacy of violent revolution. But in the course of doing so it held that free speech was a liberty protected against state infringement by the due process clause of the Fourteenth Amendment. The Court similarly upheld a California law against syndicalism in a unanimous 1927 decision. In 1931 the Court for the first time overturned a conviction, striking down a California law that prohibited the display of the red (anarchist) flag. This was an especially remarkable extension of civil libertarianism since “symbolic speech” or “expression,” rather than conventional speech or writing, was at issue. The next month, the Court voided a Minnesota statute that imposed censorship on newspapers that had a reputation for obnoxious publication.

The Court would never be entirely clear about what it was doing as it incorporated the Bill of Rights. In Powell v. Alabama (1932), the Court overturned the hasty convictions of eight young black men (the “Scottsboro Boys”) sentenced to death for raping a white woman, because they had not been given “assistance of counsel for [their] defense.” But the Court did not, strictly speaking, apply the Sixth Amendment to the states. Rather, it held that the due process clause required a “fair trial,” and that this involved the right to counsel in capital cases. In 1938 the Court upheld a Connecticut case in which the state attorney, not satisfied with a conviction for second-degree murder, re-prosecuted a bank robber and won a first-degree charge and execution. Imposition of double jeopardy, Justice Cardozo held, does not “shock the conscience.” Nor was this Fifth Amendment right part of “the very essence of a scheme of ordered liberty.”

These cases suggested that the Court was incorporating the Bill of Rights in an ad hoc fashion, relying on intuition and responding to social and political developments. Thus, when the political power of organized labor was at its apex, the Court asserted in 1940 that picketing was an exercise of free speech, and struck down an Alabama statute prohibiting it. This policy soon became untenable and the Court abandoned it by the end of the decade, paralleling legislative restrictions on union privileges. In 1940 the Court sustained a Pennsylvania law that required public school students to salute the flag. When widespread violence ensued against Jehovah’s Witnesses, who refused on religious grounds to pledge allegiance, the Court reversed the decision three years later. Justice Hugo Black was especially agitated about the latitude that this “selective incorporation” of the Bill of Rights gave the justices, which seemed to be another version of the substantive or economic due process and natural law theories that the progressives disdained. In 1947, the Court reversed a forty-year old precedent that allowed state juries to regard a defendant’s refusal to testify as tantamount to an admission of guilt, notwithstanding the Fifth Amendment’s guarantee that no one “shall be compelled in any criminal case to be a witness against himself.” But the Court still maintained that the Fourteenth Amendment did not impose all of the Bill of Rights upon the states, nor did such rights as were incorporated bind the states in precisely the same way that they bound the federal government. Justice Black, reviewing the legislative history of the Fourteenth Amendment, insisted that it did, and argued strenuously for “total incorporation” of the Bill of Rights. For Black, every one of the Bill of Rights applied to the states exactly as it applied to the federal government--no more and no less. But “selective incorporation” proceeded. Today, the Second and Seventh Amendments, and some provisions of the Fifth Amendment, remain unincorporated.

The Cold War also evoked shifting standards regarding civil liberties. Facing foreign threats of fascism and communism, federal and state governments redoubled their efforts to guard against domestic subversion. In 1940 Congress enacted the SmithAct, prohibiting conscious membership in an organization advocating violent revolution. Ten years later, the McCarran Act required subversive organizations to register with the Attorney General—thus inviting Smith Act prosecutions. In the 1951 Dennis case, the Supreme Court sustained such prosecutions under the “clear and present danger” standard, which helped to cripple the Communist Party of the United States. Later in the decade, as the Cold War cooled after the Korean War, the Court applied a more libertarian standard. In the 1957 Yates case, it required that the government prove a closer proximity between speech or advocacy and threatening action. In the late 1960s, a similar standard effectively made state sedition laws unenforceable. While the Court never held sedition laws per se unconstitutional, it interpreted “clear and present danger” in such a way as to deter prosecution of the offense.

Federal power, particularly that of the executive, continued to expand as a result of the foreign policy commitments of the Cold War. The US became involved in treaty obligations with many nations, and maintained an unprecedented military establishment in peacetime. Congress virtually conceded to the president the power to declare war with the Korean conflict. Despite the influence of the philosophy of “legal realism” that denied any distinction between law and politics, the Supreme Court maintained its traditional deference to the political branches in foreign affairs. But in 1952, when President Truman seized the nation’s steel mills, to ensure their continued operation in anticipation of a strike by the United Steelworkers, the Court declared his action unconstitutional. By a 6-3 vote, with a variety of concurring opinions, the Court discerned an executive usurpation of legislative power that could not be excused by the exigencies of an “emergency” quasi-war.

The effect of foreign policy on constitutional government is among the most persistent and difficult problems in human history, one that the United States was able to avoid due to its relative isolation from world affairs before World War II. The survival of a lawful nation in a Hobbesian world of usually lawless sovereign states poses a profound dilemma. Americans had to conjure with the argument that foreign policy must be unified, discretionary, unlimited—essentially lawless. American constitutionalism grew as a denial of the doctrine of “sovereignty” in the English imperial system, and sought to establish an effective but limited government—or a limited over a sovereign people. Yet the conflicts of the twentieth century raised again the problem that Lincoln expressed at the beginning of the Civil War: “Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its existence?”

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• Richard C. Cortner, “The Nationalization of the Bill of Rights: An Overview,” News for Teachers of Political Science (1986).
• Akil Reed Amar, “The Bill of Rights and the Fourteenth Amendment,” Yale Law Review102 (1992).
• Robert Eden, ed., The New Deal and Its Legacy: Critique and Reappraisal (1989). William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932-40 (1963).
• Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (1998).
• Hadley Arkes, The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (1994).
• John A. Rohr, To Run a Constitution: The Legitimacy of the Administrative State (1986).
• Ellis W. Hawley, The New Deal and the Problem of Monopoly: A Study in Economic Ambivalence (1966).
• Otis L. Graham, Toward a Planned Society: From Roosevelt to Nixon (1976).
• Paul L. Murphy, The Constitution in Crisis Times, 1919-69 (1972).
• Marian C. McKenna, Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937 (2002).
• Herman Belz, “Changing Conceptions of Constitutionalism in the Era of World War II and the Cold War,” Journal of American History 59 (1972).
• Walter F. Berns, Freedom, Virtue, and the First Amendment (1957).
• Richard C. Cortner, The Supreme Court and the Second Bill of Rights (1981).
• David M. Rabban, Freedom of Speech in Its Forgotten Years (1997).
• Arthur A. Ekirch, Jr., Ideologies and Utopias: The Impact of the New Deal on American Thought (1969).
• James O. Freedman, Crisis and Legitimacy: The Administrative Process and American Government (1978).
• Louis Galambos, ed., The New American State: Bureaucracies and Policies Since World War II (1987).
• William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995).
• John Braeman, Before the Civil Rights Revolution: The Old Court and Individual Rights (1988).
• Jim F. Couch and William F. Shugart, The Political Economy of the New Deal (1998).
• G. Edward White, The Constitution and the New Deal (2000).
• Jeffrey D. Hockett, New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson (1996).
• Edward S. Corwin, Total War and the Constitution (1947).

VIII: The Constitution and the Cultural Revolution

In the New Deal era, the American people made a commitment to federal regulation of the economy and to American leadership in world affairs. A relaxation of constitutional restraints on government power, particularly the deferential position of the Supreme Court, facilitated these changes. Under the general welfare and interstate commerce powers, Congress became an all-purpose government that largely relegated the states to administrative subdivisions. In both policymaking and quotidian operation of the government, Congress delegated vast powers to the president and the new bureaucracy. Washington was now the central arena for competing interest groups. While the United States retained an enterprising business class, a “new class” eclipsed it in the aftermath of the New Deal and World War Two. This class was composed of federal bureaucrats and lawyers, organized labor leaders, new media corporations, and educators. Most depended on government spending and were either unfamiliar with or hostile to the old business elite. They championed the continuation of New Deal liberalism, and were confronted by and ultimately absorbed many of the sensibilities of 1960s activism.

The most significant change in the second half of the twentieth century was the great cultural revolution that climaxed in the late 1960s. An expanding set of dissident and marginalized groups and individuals—blacks and other ethnic minorities, women, students, the elderly, disabled, criminals, pacifists, environmentalists, and homosexuals—regarded themselves as victims, or advocates of the victimized an abused. Their claims represented, at the least, a radical extension of the traditional American principles of liberty and equality and, in some cases, a revolt against deeply engrained religious, moral, and political norms. Constitutionally, this revolt challenged the legitimacy of much of American political culture, as the New Deal liberal regime became reviled as “the establishment.” The most remarkable feature of the era was the reassertion of judicial power, as the Supreme Court recovered from its Post-Court-packing deference and became a leader, and the most hotly contested institution, in the late twentieth century “culture wars.”

Cultural revolution and judicial power began with the movement for black civil rights. As previously described, the Court had established at least some limits on segregation and discrimination before World War I, and had articulated premises for the defense of non-property rights in general. Black Americans steadily gained influence and organized to end their relegation to second-class citizenship. In the 1910s and especially during the war, the “great migration” of blacks out of the rural South and into northern cities began. This fed the growth of a new black middle class, new organizations, and voting power. During the 1930s, blacks shifted their political allegiance from the Republican to the Democratic party, a process completed in the 1960s. Black participation in World War II, a war fought for democracy against Hitler’s ghastly racist regime, accelerated the egalitarian trend. President Roosevelt prohibited defense contractors from discriminating against black workers, a policy continued in many northern states by “fair employment practice” commissions. Liberal opinion was encapsulated in the monumental study by Swedish sociologist Gunnar Myrdal, An American Dilemma, which exposed the failure of Americans to live up to the “American Creed” of equal opportunity and meritocracy. The Cold War increased pressure on the United States, as the Soviet Union eagerly harped upon the hypocrisy of American racial oppression in its bid for leadership of the non-white developing world.

The Court struck several blows for racial equality during and after the war. It imposed a duty of “fair representation” on labor unions, though stopping short of a requirement that they admit blacks as members. It began to dismantle segregation in interstate transportation. Its most impressive decision struck at racially restrictive covenants in real estate. After the Court prohibited state mandated residential segregation (1917), homeowners employed covenants in title deeds wherein the purchaser agreed never to sell the property to non-whites. Since these appeared to be voluntary contracts, the Court upheld them in 1926. This underlined one of the most important limitations on the Fourteenth Amendment: it prohibited only discriminatory action by the states, not by private persons. But in 1948 the Court ruled that restrictive covenants could not be legally enforced, for a judicial order to abide by a discriminatory covenant constituted “state action.” The implications of this ruling, prohibiting any legal enforcement of private discrimination, were far reaching, but went unrealized until the 1960s.

The National Association for the Advancement of Colored People, the most important civil rights organization of the twentieth century, had methodically laid the groundwork for dismantling segregation in education. It began in public higher and professional education, where integration was far less controversial than in secondary schools. In 1938 the NAACP won its first major case, the Supreme Court holding that Missouri could not refuse to admit blacks to its state law school, since it had no separate law school for blacks. A decade later, the Court held that separate Texas and Oklahoma law schools were not substantially equal to the white institutions. In 1952 the Court agreed to hear a set of secondary public school segregation cases.

The Court heard two rounds of argument in Brown v. Board of Education and its companion cases. During the arguments, Chief Justice Fred Vinson died and was replaced by Earl Warren. Warren was a moderate Republican, having served as California attorney general and the party’s vice-presidential candidate in 1948. A contender for the 1952 presidential nomination, it was reputed that President Eisenhower promised to appoint him to the first open seat on the Supreme Court. Hardly known for doctrinaire egalitarianism (he had led the effort to inter Japanese-Americans during World War II, over the objections of FBI director J. Edgar Hoover), he was about to strike the most important judicial blow against discrimination in American history.

Warren faced several difficulties in devising an opinion. The Chief Justice wanted a unanimous opinion, for he believed that the court must speak with one voice in so controversial a decision. But the Court was composed of many strong and contentious personalities. These New Deal justices were still reluctant to engage in the kind of judicial lawmaking that they associated with their anti-New Deal predecessors. The Plessy precedent stood in the way, nor did going behind precedent to the legislative history of the Fourteenth Amendment provide much relief. Thus Warren put aside precedent and drew attention to the fact that education was more important in 1954 than it had been in 1896 or 1868. And whereas nineteenth century social science believed that segregation did not stigmatize or harm blacks, modern sociology and psychology proved that it did. Experiments conducted by psychologist Kenneth Clark, for example, which showed that black children preferred white dolls to black dolls, indicated that segregation “generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Thus, Warren concluded, “In the field of public education, separate but equal has no place.”

Based on social psychology rather than law, Brown was perhaps the boldest application of “sociological jurisprudence” ever. It provoked an intense backlash in the South. Southern politicians called for “massive resistance” and revived theories of nullification and state interposition. The Court seemed to draw back from its ruling in 1955, when it issued orders to implement the Brown ruling. To reconfigure the thousands of schools in the South and border states would be a colossal task, and the prospect of centralized direction of this fundamental local institution was not popular. Thus the Court assigned the primary responsibility for desegregation to local school boards, and federal district courts were to see that racial segregation was dismantled “with all deliberate speed.” The ten years after the decision saw virtually no desegregation in southern schools.

Several other problems arose from the decision. States could not segregate because the Fourteenth Amendment required that no state deprive any person of the equal protection of the laws, but the Constitution did not impose an equal-protection rule on Congress, which segregated public schools in the District of Columbia. The Court struck down DC school segregation anyway, indicating that basis for the decision was really old-fashioned substantive due process. Lower federal courts interpreted Brown as prohibiting segregation in areas other than education, though the decision gave no basis for desegregation outside of public schools. Nevertheless, the Supreme Court upheld these lower court rulings.

Despite its unclear basis and lack of concrete results, the Brown decision laid the foundation for judicial leadership in American social reform. As the civil rights movement gained momentum and success, national elites saw the Court as having done something about the outstanding moral defect in America while the political branches did nothing. The Court was able to draw on this moral capital for decades. In 1957, when faced with the resistance of Arkansas governor Orval Faubus to an order to desegregate a high school in Little Rock, the Court made the most comprehensive statement of judicial supremacy. Striking down state resistance to a federal court order, the Court in Cooper v. Aaron claimed that “the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land”—that is, that the Court’s interpretation of the Constitution was equal to the Constitution itself. Thus, no political challenge to Court rulings, such as Abraham Lincoln proposed after Dred Scott, was legitimate. Only formal amendment of the Constitution could trump a Court decision.

The Warren Court retreated somewhat in the late 1950s, perhaps due to public reaction to its segregation and Cold War-civil liberties decisions. After the election of John F. Kennedy and the augmentation of its liberal wing (particularly after the death of Felix Frankfurter, the chief proponent of judicial restraint) the Court promoted a number of liberal reform causes.

In 1962 the Court ordered that state legislatures and congressional districts be reapportioned on the basis of a “one person, one vote” standard. Throughout American history, incumbent legislatures tarried to redraw electoral district lines to keep up with shifts of population, and state constitutions provided for upper houses based on township or county units rather than population. In the twentieth century, this custom strengthened rural areas at the expense of urban ones. Vermont’s upper house was based on town equality; the smallest town having equal representation with a town that had 1,000 times as many people. More common “variance ratios” were between 50 and 100 to 1. (In today’s US Senate, California has seventy times the population but the same number of senators as Wyoming. Since the Constitution provides that no state can be deprived of its equal suffrage in the Senate without its consent, this is nearly impossible to remedy.) Traditionally, the Court had remained aloof from controversies regarding the legitimacy of state governments, by the principle that these were “political questions”—nonjusticable matters to be worked out by the political branches. The Court now threw out the “political questions” doctrine. Though its holding “flies in the face of history,” as Justice Harlan put it, legislatures complied and the ruling enjoyed broad popular support, for most Americans had an intuitive sense that “one person, one vote” was fair. The decision came too late to help liberal politics, though, due to the demographic shift to relatively conservative suburbs.

The dam also broke on the incorporation of the Bill of Rights in the 1960s. The Court extended nearly all of the protections of the first eight amendments to criminal defendants in state cases. By itself this was relatively unexceptional for, like “one person, one vote,” the Bill of Rights seemed fundamentally fair to most Americans. Criminal reform also grew out of the civil rights movement, for the criminal justice system was often abused as a means of reinforcing white supremacy—southern states were the ones most often to have not yet adopted the new standards. The rapid increase of violent crime made the decisions more controversial. The impact of court-ordered changes in criminal procedure on the crime rate continues to be disputed, but the public had a sense that criminals were being set free by the application of standards like the exclusionary rule—the reversal of convictions based upon illegally seized evidence—or other legal technicalities. By the end of the decade, Warren Court decisions had provoked a strong “law-and-order” reaction. In the long run, the nearly complete incorporation of the Bill of Rights would involve the federal courts in a wide range of cases.

The criminal procedure cases also raised the issue of judicial lawmaking or activism. In applying the exclusionary rule to the states, for example, the Court held that all future convictions based on illegally seized evidence would be overturned; prisoners currently incarcerated obtained no relief. This appeared to be an essentially legislative act—establishing a prospective general rule, rather than deciding individual cases in retrospect. The Court’s detailed instructions on detention procedures (reading the accused his “Miranda rights”) similarly appeared legislative. The school desegregation cases evinced a similar non-judicial quality. While the Court failed to provide effective relief for black plaintiffs in 1954, it would come to administer local schools in the 1960s.

Intense controversy accompanied the Warren Court’s decisions on religion. For most of American history, even after the last state ended its established church, public life displayed an informal (or “de facto”) establishment along non-denominational but broadly Protestant lines. The Court incorporated the free exercise clause in 1938-40, vindicating the right of Jehovah’s Witnesses to proselytize. In 1947 it incorporated the establishment clause. But in this case, Everson v. Board of Education, the Court embraced Thomas Jefferson’s metaphor of a “wall of separation” between church and state while it upheld a state law that provided for transportation for Catholic school students, but not other private school students. Everson was aberrant; the trend would be toward “wall of separation” secularism rather than to denominational pluralism.

In 1962 the Court struck down New York’s mandated school prayer, though it was non-sectarian and not even Christian. The next year it prohibited Pennsylvania’s requirement that students read ten verses from the Bible each day. Though the leading school prayer cases came from the northeast, such public expressions of faith were vestigial there. As in other areas, the Warren Court’s secularization movement applied national elite cultural standards to the South. Many southern school districts ignored the rulings, and decades of litigation ensued, as almost any free exercise of religion that was not entirely private could be challenged as amounting to an establishment of religion.

The Court also imposed national standards on local majority police power in its decisions regarding privacy and expression. In 1965 the Court struck down a Connecticut law that prohibited the sale of contraceptives, even to married couples. (The statute, long in desuetude, appeared to reflect the political power of Connecticut Catholics. In fact it dated from 1879, when the state was still predominantly Protestant.) In this case the Court announced a constitutional “right to privacy.” Though no such provision appears in the Bill of Rights, Justice Douglas wrote that “specific guarantees [in the Bill of Rights] have penumbras, formed by emanations of these guarantees that help give them substance and life.” Other justices concurred in the result but on other grounds. Justices Black and Stewart dissented, claiming that the Court was engaged in old-fashioned substantive due process. Indeed, later cases concerning sexual liberty would shift its basis from the right to privacy to Fourteenth Amendment liberty.

The southern civil rights movement also led the Court to impose a new, stringent, national standard of libel on the states. An Alabama jury awarded $5 million to local law enforcement officers who were named in a New York Times advertisement for imposing a “wave of terror” against civil rights activists, due to several minor factual inaccuracies in the ad. The judgment amounted to a state effort to run national media out of the state. The Court unanimously overturned the award, holding that suits for libel in matters of public concern must prove “actual malice”—deliberate falsehood or a reckless disregard for truth. The decision gave relatively free rein to the media and virtually abolished libel for “public persons.” The Warren Court also began to do away with local prosecution of obscene and pornographic publications. Before incorporation, various communities were free to determine how far they wanted to extend freedom of expression. The Court attempted to devise a national standard, and had a difficult time doing so. In 1957 it said that something was obscene if, to “the average person, applying contemporary community standards, the theme of the material as a whole appeals to prurient interests.” Five years later the standard was “patent offensiveness and indecency.” Then it must be “utterly without redeeming social importance” by a national standard, or “utterly without redeeming social value.” Justice Stewart captured the problem when he said that he could not define the pornographic, “but I know it when I see it.” In the 1970s, local communities were permitted to prosecute “hard-core” pornography and to prohibit the exhibition of, and sale of pornography to, minors.

The Warren Court had restored the judiciary to center stage in American politics, and became the target of political reaction. While “impeach Earl Warren” became a popular billboard sign, there was little prospect of this option. Congress did defy the Court’s imposition of the exclusionary rule, but federal prosecutors ignored the statute and complied with the Court. Other legislation to limit the Court’s jurisdiction or amend the Constitution as a way to overturn its decisions in controversial cases failed. (Ironically, an amendment to undo the Court’s “one person, one vote” ruling was defeated by a Senate filibuster—a minority-rule tactic in the one legislative body where “one person, one vote” apportionment could not be imposed.) Indeed, in the mid-1960s Congress began to catch up to the Court on civil rights and to extend liberalism by legislation.

Intensified civil rights protests—fueled in part by frustration at the failure to realize school desegregation and provoking brutal southern resistance—led Congress to enact the comprehensive Civil Rights Act of 1964. Its principal feature was Title II, prohibiting segregation in places of public accommodation. Essentially the same as the 1875 Civil Rights Act, struck down by the Court in the 1883 Civil Rights Cases (ch. 5, p. 14), this was now accepted as an exercise of Congress’ power to regulate interstate commerce. The act also cut off federal funding for any school that segregated or discriminated on the basis of race; this provision finally ended southern massive resistance. The act also prohibited discrimination in private employment. The education and employment titles contained provisos that racial imbalance was not per se discriminatory, and prohibited racial preferences or quotas—which opposing congressmen presciently warned would result from the act. The employment tile also made discrimination on the basis of sex illegal—an amendment introduced by opponents either to kill the bill or to prevent the substitution of blacks for white women.

The next year, Congress enacted the Voting Rights Act, which established direct federal control of elections where devices like literacy tests were used and where less than half of the voting-age population was registered. The Twenty-Fourth Amendment, prohibiting poll taxes, took effect at the same time. The result was a vast increase in voting by blacks and whites in the South. The South became a two-party region and voting became racially polarized, as blacks became the most loyal bloc in the Democratic party and southern whites shifted to the Republicans by the end of the century.

Shortly after these legislative enactments, the Court began to take further steps, as the civil rights movement became more radical in demands for “Black Power.” The Court swept away the “state action” limit on civil rights law in 1968, holding that the Civil Rights Act of 1866 (enacted under the Thirteenth Amendment), which gave blacks the same right “to make and enforce contracts” as whites, provided a basis to sue in cases of private discrimination. The Court stepped into “affirmative action” by confirming lower court and federal bureaucrats’ interpretation of the new civil rights laws. Even after southern school districts stopped obstructing desegregation, relatively few black and white children attended the same schools. The federal courts and bureaucrats began to turn Brown from a prohibition of segregation into a duty to integrate. In the early 1970s they began to order busing to achieve racial balance, and applied it to “de facto” segregation in the North—racially unbalanced schools that did not result from any legal establishment of segregation. Similarly, Justice Department enforcement of the Voting Rights Act regarded access to the polls as insufficient, and began to act against “vote dilution”—electoral procedures that did not produce a significant number of minority elected officials. The new voting rights standard appeared to be one of racially proportionate election results. In employment, the Equal Employment Opportunity Commission, Justice Department, and Labor Department sought proportional representation in the work force. The Labor Department required particular percentages of minority employees from government contractors. The EEOC prohibited any employment test that resulted in low proportions of minority employees, unless the practice could be shown to be a “business necessity.” In the Griggs case (1971), the Court accepted this “disparate impact” standard—making suspect any practice, whether intentional or not, that had an adverse impact on the minority group. The courts also imposed quota hiring remedies and revised seniority systems to compensate for past discrimination, despite the provisions of the Civil Rights Act. “Civil rights,” a vision for the future based on principles of individual rights, color-blindness, and equality of opportunity, had evolved into “affirmative action,” a philosophy that suspected any departure from racial group equality as being result of past discrimination, and advocated color-conscious remedies to produce proportionate group outcomes.

The Congress that enacted landmark civil rights legislation also expanded the New Deal into what President Lyndon B. Johnson called the “Great Society.” The federal government began to provide medical care for the elderly and indigent, and subsidized secondary education for the first time. Anti-poverty programs grew and welfare began to be regarded as an entitlement, to be provided without work requirements, stint or stigma. Social Security, farm subsidies, and other elements of the New Deal welfare state continued to expand, along with new subsidies for the media, arts and humanities. Little noticed was the 1965 immigration act, which opened the United States to significant numbers of Asians and Latin Americans, and would produce tremendous demographic change over the next generation. But this flare of liberal reform burned out quickly. The nation became increasingly polarized over the Vietnam War and the social upheaval of ghetto riots, student protests and riots, and violent crime. A stance of opposition, beginning with black activists and spreading to other ethnic groups, feminists, students, and homosexuals, seeped into the national media and universities especially. The Democrats’ overwhelming majority in Congress was significantly trimmed in 1966. With the Democrats divided over the war, and with the populist segregationist George Wallace drawing votes from traditionally Democratic voters in the South and northern cities, Republican Richard Nixon was elected president in 1968.

Though liberals despised Nixon ever since his aggressive anti-Communist campaigns of the 1940s, and particularly after his exposure of Alger Hiss’ Soviet espionage, he was in many ways a quintessential New Deal liberal. Nixon accepted the economic intervention of the regulatory state and expanded it, particularly in environmental and health-and-safety realms. He took extraordinary measures, including wage and price controls, to combat the economic downturn and inflation of the early 1970s. He extended affirmative action and supported a proposal for a “negative income tax” for the working poor. Though he tactically widened the Vietnam conflict, he steadily withdrew American forces from Southeast Asia, ended the draft, and concluded a peace settlement in 1973. He adjusted American Cold War policy into “détente” or peaceful accommodation with the Soviet Union and even Communist China. Though he was to this extent a “modern Republican” in the mode of President Eisenhower, Nixon was less deferential to Congress and was determined to control the administrative state that the liberals had built.

Nixon’s first opportunity came in reshaping the Supreme Court, but the result was no more than to slow the liberal activism of the Warren Court. The judicial selection process had become highly politicized in the late 1960s. From 1870 to 1930 there were only two rejections of Supreme Court appointees, and very few recorded votes in the Senate. William Brennan was the only incumbent justice who had appeared before the Senate. In 1968, after Robert F. Kennedy’s assassination convinced him that Nixon would be elected, Warren contrived to arrange his resignation so that President Johnson would be able to name his successor. Johnson proposed to elevate his liberal political ally Abe Fortas to the chief justiceship. During the confirmation hearings, opposition to Warren Court activism, suspicion of Fortas’ political ties to the administration, and finally evidence of financial corruption, forced LBJ to withdraw the nomination and then compelled Fortas to resign altogether. Nixon was able to name Warren Burger as chief justice in 1969. He filled three other seats by 1971, after two rejections of southerners who were perceived as hostile to civil rights. Burger moved the Court to a more moderate political position.

The Burger Court blunted some of the more ambitious innovations of the Warren Court, refusing, for example, to regard as presumptively unconstitutional any law that had a disparate impact on the poor. In criminal procedure cases, it continued the essentially legislative function of the Warren Court, but with more regard for law enforcement. In 1972 the Court came close to holding capital punishment to be unconstitutional, but popular reaction led states to devise procedures for its application that successfully met the Court’s more stringent standards. On matters of religious freedom and free speech, each term brought new cases for judicial fine-tuning, but clear standards continued to elude the Court. Even when in substance the Court moved in a conservative direction, it retained the activist style of its predecessor.

In many areas the Burger court extended liberal principles. It extended busing for school integration, though in 1974 it drew the line at integration of city and suburban districts. Due to the suburbanization of America in general and “white flight” from minority districts in particular, this placed serious practical limits on school integration. But the federal judiciary continued to micromanage school systems under earlier integration decrees. The Court vigorously expanded affirmative action in employment. In 1979 it shielded “voluntary quota” plans by private employers against “reverse discrimination” challenges. It also approved of racial preferences in admissions to college, on the theory that a “diverse student body” was a compelling state interest. An act of Congress that set aside a portion of federal construction spending for minority-owned firms was also approved. The Court extended the principle of sex equality, although it did not go so far as to make sex a “suspect classification” equivalent to race. The failure to ratify the Equal Rights Amendment in the 1980s seemed to confirm this sense on the part of the American people. The Court adopted what was called “intermediate scrutiny” in sex discrimination cases. Sex-based legislation would not be regarded as presumptively valid, as when economic rights were concerned, nor would it be subject to strict scrutiny and required to be narrowly tailored to meet a compelling state interest (as when race was at issue). This also made it easier for states to use sex-based affirmative action for women.

The most controversial Burger Court decision was Roe v. Wade (1973). Building on the Warren Court principle of a “right to privacy,” the Court struck down all state abortion laws. States like New York and California had already begun to liberalize their abortion laws, as the general twentieth century relaxation of Victorian sexual mores intensified in the “sexual revolution” of the 60s. In the first trimester of pregnancy, the states could not regulate abortion at all. In the second, they could only do so for the sake of maternal health. Only in the third trimester could the state legislate for the sake of the unborn child, but must permit abortion if continued pregnancy adversely affected maternal life or health. Since maternal health included psychological well-being, the decision amounted to abortion on demand. Along with affirmative action, abortion was the most contested issue of the next three decades and became the paramount issue in political battles over control of the judiciary. Notably, three of the four Nixon appointees concurred in the decision, written by Nixon appointee Harry Blackmun.

Thus Nixon affected the Supreme Court very little. His attempt to concentrate administrative power in the presidency led ultimately to the Watergate scandal and his resignation in 1974. A series of executive acts to control legislation and administration preceded the Watergate burglary. Nixon expanded the White House staff and tried to impose politically loyal appointees on the “permanent government” of the federal bureaucracy. He refused to spend money appropriated by Congress for programs that he disliked, engaging in a new kind of “impoundment” of Treasury funds. He claimed to be able to choose not to enforce acts of Congress and proceeded to dismantle programs that he was preparing to abolish. His conduct of the Vietnam War and foreign policy also provoked public and congressional reaction.

Nixon was convinced the he embodied the “silent majority” of Americans and was being opposed by a left-wing ideological coalition in Congress, the bureaucracy, the media, and universities. His support derived from popular reaction to the 60s cultural revolution--the new liberalism, it was called, of “acid, amnesty (for draft evaders), and abortion.” He became obsessed with secrecy as political opponents leaked government secrets to the press—the publication of the “Pentagon Papers,” an inside history of the Vietnam War, for example, by Defense Department official Daniel Ellsberg. Shadowy figures in Nixon’s personal staff burglarized the office of Ellsberg’s psychiatrist, and broke into the headquarters of the Democratic party at the Watergate Hotel in1972.

Shortly after the burglary, Nixon won one of the greatest electoral victories in American history. Trial of the Watergate burglars revealed White House involvement, and the Senate began an investigation, conducted under special prosecutor Archibald Cox. Cox found a number of abuses of executive power, most important being Nixon’s collusion in the cover-up of the Watergate investigations, ultimately revealed in tape recordings that Nixon maintained of White House conversations. Nixon repeatedly tried to thwart the investigation, making claims of “executive privilege” and ultimately firing Cox. The Supreme Court finally ordered Nixon to turn over the incriminating tapes and, when the House Judiciary Committee reported articles of impeachment, Nixon resigned in August, 1974.

The Nixon presidency awakened liberals to the potential danger of the powerful executive that progressivism and liberalism had created. Nixon appealed successfully to the American people, over the head of the liberal strongholds in Congress and the bureaucracy. In addition to his threat to a liberal elite that disliked him intensely, Nixon’s near-paranoia and willingness to engage in criminal activity to maintain his position did him in. In the late 1970s, Congress attempted to impose clearer limits on executive power. Most important of these was the War Powers Act, which permitted the president to begin a war but required that he notify Congress and permitted Congress to end the conflict if it did not approve. Nixon vetoed the measure, and subsequent presidents have regarded it as unconstitutional, albeit they usually complied with it. Congress also tried to control the process by which “emergencies” were declared as justification for executive action. It also made permanent the special prosecutor office, now called the Independent Counsel, to facilitate investigations of the executive branch. Though this office appeared to violate the separation-of-powers principle, providing a cut-rate substitute for impeachment, the Supreme Court upheld it in 1988.

Yet, there seemed to be no substitute for vigorous executive power. Congress seemed to admit as much by its delegation of powers to the executive branch and its use of the “legislative veto”—allowing the president or bureaucrats to make policy with only the vaguest of standards, but reserving the power to reverse their decisions--an apparent inversion of constitutional roles. (The Supreme Court overturned the legislative veto in 1983.) In 1980, Ronald Reagan was elected president, and did much to restore the prestige of the American presidency—despite the fact that he was much more ideologically conservative than Nixon had been. Reagan’s election returned American politics to the conflict between Congress and President that characterized the Nixon years. The national government was closely divided as it had not been since the late nineteenth century. While the executive and legislative branches were in different party hands for only ten of the 36 years from 1933-69 (and with little partisan conflict between Eisenhower and Congress), they were in the same party’s hands for only six of the next 32 years. These divisions reflected primarily the ideological or cultural discord of the American population. Ethno-cultural-religious identity remained the chief determinant of political behavior, and this was exacerbated by the cultural revolution of the 1960s. Economic and foreign policy issues also played a role. American voters appeared to prefer Republican presidents for national security reasons during the later Cold War. Democrats seemed to have a lock on Congress due to the country’s desire to maintain various government entitlements, but Republicans benefited from their reluctance to pay higher taxes for them. The party system had also weakened considerably in the twentieth century, and parties lost much of their power to organize and stabilize government. The result in the 1980s was increased defense spending, continued domestic spending, tax cuts, and large budget deficits.

Congress and the President continued to spar over the direction of the administrative state and of foreign policy. Congress was particularly successful at maintaining its control over the federal budget and spending. When the Reagan administration attempted to maneuver the bureaucracy toward its goals, congressional committees used their oversight power to monitor and check them. Democrats used the independent counsel as another rein on executive power. The most important of these was the investigation into the Iran-Contra controversy. As part of a plan to redeem American hostages, the Reagan administration sold weapons to the Iranian government, a regime that supported international terrorism, and used the proceeds to fund rebels (contras) against the communist government in Nicaragua. Congress had attempted to prohibit spending to aid the contras, and a lengthy investigation revealed many improper acts by administration officials and neglect, if not outright illegality, in the White House. For a time it appeared that the president might be liable to impeachment. Ultimately, several administration officials were convicted for attempting to cover up the affair, but all of the convictions were overturned on appeal. Reagan served out his second term and his Vice-President, George H. W. Bush, continued Republican control of the executive branch. Domestically, Reagan was able to accomplish almost nothing apart from tax reduction, as the commitment of the American people to the New Deal political economy seemed confirmed. He was able to restore a vigorous foreign policy, hastening the collapse of the Soviet Union in 1989-91.

In the 1990s, the two principal elements driving national partisan conflict—the budget deficit and the Cold War—disappeared. Bill Clinton was elected president in 1992, in large part due to third-party candidate H. Ross Perot, who made the deficit his principal issue. But the deep divisions in the American electorate resurfaced when, after President Clinton attempted to extend liberal principles, in particular nationalization of medical care, voters gave the Republicans control of both houses of Congress for the first time in forty years, and only the third time in 64 years. With significant new spending blocked by the Congress and tax cuts forbidden by the president, compounded by post-Cold War defense cuts and a burst of technology-driven prosperity, the deficit was eliminated and large surpluses produced by the end of the decade. Although President Clinton used an array of executive tactics—executive orders, interim appointments, FBI investigations, and pardons—in his skirmishes with Congress, he ended up being impeached after an independent counsel investigation of his financial affairs revealed his sexual involvement with a 21-year old White House intern. The House of Representatives charged Clinton with perjury and obstruction of justice in his attempt to cover up the ménage. The Senate acquitted the president of the charges, and the independent counsel statute was allowed to expire in 2001.

The election of 2000, between Democrat Al Gore and Republican George W. Bush, provided staggering confirmation of the polarized nature of the American electorate. Each candidate got 48% of the popular vote, and the decision in the electoral college came down to a few hundred votes in Florida; the results were not settled until December. There was a bitter constitutional crisis within the state, as the 4-3 majority of the Florida supreme court ordered recounts to aid Gore, while the governor (Bush’s brother), secretary of state, and legislature leaned toward the Republicans. The US Supreme Court, also closely divided, finally overruled the Florida court and Bush carried the election. The new US Senate was divided 50-50. A Republican vice-president gave that party control of the body, but only for several weeks, after which a liberal Republican Vermont senator switched parties and gave the Democrats control.

With the electoral branches deadlocked, the Supreme Court emerged as the predominant constitutional institution at century’s end. Republican efforts in the 1980s to reshape the Supreme Court produced intense congressional opposition. In 1981 Reagan appointed Sandra Day O’Connor, the first woman to sit on the Court. She won unanimous Senate confirmation and maintained the moderate record of her predecessor, Potter Stewart. In 1986 Chief Justice Warren Burger retired, and Reagan proposed to elevate Associate Justice William Rehnquist, Nixon’s one conservative appointee. The move provoked intense partisan opposition but the president prevailed. Curiously, Reagan’s nomination of the profoundly conservative Antonin Scalia for the associate seat opened by Rehnquist’s elevation drew no resistance. After the Republicans lost control of the Senate in the 1986 elections, Democrats were able to prevent the confirmation of Robert Bork, an appeals court justice and academic critic of judicial activism, to the Court. Massachusetts Senator Ted Kennedy kicked off the opposition campaign by saying,

Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy.

Kennedy's philippic indicated the degree to which liberals depended on the courts to enact their policies. The unprecedented bitterness of the attack added the verb “to bork”—to threaten or undertake a relentless campaign of ideological and character assassination—to the American political lexicon. It intensified the debate between advocates of liberal judicial activism and conservative judicial restraint, which traced its origins to the Warren Court.

Bork’s place was taken by Anthony Kennedy, who joined Justice O’Connor in the center of the Court. In the aftermath of the Bork debacle, President Bush nominated David Souter to replace liberal icon William Brennan. Souter had no academic or judicial “paper trail,” and liberals suspected that he was a “stealth candidate” who would come out as a conservative after confirmation. In fact Souter joined the liberal bloc, to the chagrin of conservatives. Bush’s 1991 nomination of Clarence Thomas to replace Thurgood Marshall provoked another ugly confirmation fight, based on accusations by a former subordinate that Thomas had “sexually harassed” her. Thomas was confirmed by the Democratic Senate, and produced a Supreme Court that was evenly divided among liberals, moderates, and conservatives.

The results of Reagan and Bush’s effort to reorient the Supreme Court were limited and short-lived. On the two most controversial issues before the Court, affirmative action and abortion, a conservative shift was evident in 1989. The Court attempted to arrest the drift toward proportional representation in employment by raising the standards by which a Griggs “disparate impact” claim could be made— essentially shifting the burden of proof from employer (accused) to employee (accuser). At the same time, it expanded the range of employment practices that were open to disparate impact claims. This decision, along with others that made technical alterations in employment discrimination cases, were reversed by Congress in the Civil Rights Act of 1991.

The Court upheld a series of restrictions on abortion in a Missouri case that did not explicitly overturn Roe v. Wade but indicated that its precedential force was eroding. But in 1992, in Planned Parenthood v. Casey, the Court issued a resounding endorsement of the “central holding” of Roe, though it conceded that what was being protected was not a “right to privacy” but a “liberty” interest under the Fourteenth Amendment. As the joint opinion by Justices Kennedy, Souter, and O’Connor put it, “At the heart of liberty is the right to define one’s own concept of existence, of the universe, and of the mystery of human life.” That Casey reinforced the abortion-on-demand principle of Roe was confirmed when the Court struck down state laws prohibiting intact dilation and extraction (or “partial-birth”) abortions. On the other hand, the Court did not extend the “mystery of human life” principle to assisted suicide, though it did indicate that a future decision might do so.

In addition to this remarkable substantive libertarian claim in Casey, the majority indicated that, even if Roe had been wrongly decided, it must be upheld to maintain the power of the Court. The Court could not be seen as retreating in the face of popular political opposition. “The American people’s belief in themselves as . . . a people who aspire to live according to the rule of law is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then so would the country be in its very ability to see itself through its constitutional ideals.” Even more than Cooper v. Aaron, this was a bold statement of judicial supremacy.

Cases in the 1990s, particularly after President Clinton strengthened the liberal wing of the Court with appointments in 1993-94, indicated that the Court was the procedural and substantive heir of the Warren Court. In 1990 the Court upheld a state law that denied unemployment benefits to employees who were discharged for taking peyote, an illegal drug that was part of Native American religious ritual. Congress responded with the Religious Freedom Restoration Act, enacted under its power to “enforce, by appropriate legislation, the provisions of” the Fourteenth Amendment. The statute ordered that any state law that “substantially burdened” a religious practice required the state to show a compelling interest—the “strict scrutiny” test. In 1997 the Court struck down the act, saying that Congress could not define the substance of rights under the Fourteenth Amendment, but could only provide remedies for judicially-defined rights under it.

The Court added its weight to the growing cause of homosexual rights. After narrowly upholding a Georgia anti-sodomy statute in 1986, the Court struck down an amendment in the Colorado constitution that prohibited any municipality from making sexual orientation a “protected class” under its civil rights laws. The Court held that the amendment had no rational basis, and was based only on animus against homosexuals. In 2003 the Court overruled its Georgia decision and struck down a Texas anti-sodomy law. Homosexuals, the majority held, “are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” The decision was based not on the fact that the law applied only to homosexual sodomy, but because sexual behavior was protected by the Casey definition of liberty. Justice Scalia, echoing Justice Holmes a century earlier, said in dissent, “It is clear… that the Court has taken sides in the culture war.”

The Court extended its women’s rights jurisprudence when it struck down the Virginia Military Institute’s male-only policy. Justice Ginsburg essentially ratified the Equal Rights Amendment, this decision making any sex-based discrimination subject to strict scrutiny. She made it clear that, as in race cases, strict scrutiny left room for preferential treatment for females to compensate for past discrimination—thus female-only schools were acceptable. And, after twenty-five years, the Court reaffirmed the constitutionality of racial preferences in higher education admissions. It struck down a University of Michigan undergraduate program that used a point-system for admissions and gave a significant numerical bonus to minority applicants, but upheld a law school system that made race a variable “plus” factor.

The Burger-Rehnquist Courts did make some halting steps toward restoring the conservative principles of property rights and federalism. Antitrust jurisprudence, for example, was less dogmatically anti-big business than under the Warren Court. The Court was open to claims of those harmed by the costs of economic regulation, and was receptive to the idea that regulation could amount to a “taking of private property for public use,” which would require compensation under the Fifth Amendment. In 1976 the Court overturned a 1968 precedent and held that the Tenth Amendment prevented the application of the Fair Labor Standards to state employees. A decade later, the Court reversed this decision. Justice Blackmun, no states-rights advocate, announced that the Court would no longer police the border between federal and state power, because the structure of the Constitution (state representation in the Senate, especially) ensured that the states could defend themselves. In light of the evisceration of federalism since the New Deal, this was indeed a fanciful argument. Thus in 1992 the Court appeared to reverse itself yet again and overturned a congressional attempt to induce the states to comply with a federal nuclear waste disposal plan. Similarly, the Court made its first efforts since the New Deal to limit Congress’ power under the interstate commerce clause. Laws prohibiting possession of a firearm in proximity to a school, and making domestic violence a federal crime, were overturned as too remote from commercial regulation. But liberal alarm that these decisions portended a “revolution in federalism” was probably exaggerated.

The greater significance of these “conservative” decisions in the 1980-90s was their assumption of liberal premises of judicial review. Even the conservative justices maintained an unprecedented standard of judicial power. Thus, criticism of “government by judiciary” or an “imperial judiciary” had even greater relevance than during the progressive era. Courts and lawyers exercised greater power than at any point in American history, and partisan conflict to control the judicial branch intensified. In the Geroge W. Bush administration, Senate Democrats went to the point of blocking and filibustering the president’s appointments to the federal appellate courts, and the press exposed efforts of liberal interest groups to get Democratic senators to hold up appointments in order to influence the outcome of particular cases. There was unprecedented acrimony among judges in closely divided circuits, and spending on elections to state courts reached new heights. State appellate courts also embraced the judicial activism of the Warren Court, as several state supreme courts ordered equal funding for public schools or homosexual marriage. At the grassroots level, there was an explosion of private litigation, as ordinary civil suits took on public policy implications. Negligence, medical malpractice, and product liability suits became vehicles for redistributing wealth and regulating industries like tobacco. In the course of doing so, lawyers gained income and political power. The American Trial Lawyers Association became an influential political lobby, and tort reform became a significant issue, as complaints about a runaway, irresponsible legal system, the “death of common sense” in enormous damage judgments for trivial cases, and the “rule of lawyers” grew. It remains to be seen how far the courts would attempt to exercise power in regard to the post-September 11 quasi-war on terrorism.

At the most fundamental level, constitutional developments since the New Deal raises the question of whether the Untied States was still a constitutional regime. The influence of legal realism, with its denial of any distinction between law and politics, necessarily rejects the central tenet of constitutional government, that politics is limited by law. To some degree, the constitution always reflected rather than shaped or limited politics, and to some degree constitutional principles had served as masks or pretexts for particular interests. It might be that an unprecedently politicized judiciary simply reflected an unprecedentedly polarized populace. Both sides in the culture war spoke as if the Constitution had not completely lost its configurative power, suggesting that the constitutional history of the United States was not at an end. Who would hazard a guess as to whether this was really just whistling past the graveyard?

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• Michael Barone, Our Country: The Shaping of America from Roosevelt to Reagan (1990).
• Herman Belz, Equality Transformed: A Quarter-Century of Affirmative Action (1990).
• Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (1969).
• Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962).
• Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1990).
• William H. Chafe, The Unfinished Journey: America Since World War II (2003).
• Ronald J. Fiscus, The Constitutional Logic of Affirmative Action (1992).
• Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 1960-72 (1991).
• Alonzo L. Hamby, Liberalism and Its Challengers: FDR to Bush (1990).
• Peter C. Hoffer, The Law’s Conscience: Equitable Constitutionalism in America (1990).
• James D. Hunter, Culture Wars: The Struggle to Define America (1991).
• Samuel P. Huntington, American Politics: The Promise of Disharmony (1981).
• Laura Kalman, The Strange Career of Legal Liberalism (1996).
• Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004).
• Dean Kotlowski, Nixon’s Civil Rights: Politics, Principle, and Policy (2001).
• Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (1975).
• Stanley I. Kutler, The Wars of Watergate: The Last Crisis of Richard Nixon (1990).
• Leonard Levy, Original Intent and the Framers’ Constitution (1988).
• Theodore J. Lowi, The End of Liberalism: Ideology, Policy, and the Crisis of Public Authority (1969).
• Robert G. McCloskey, The Modern Supreme Court (1972).
• Russell Nieli, ed., Racial Preference and Racial Justice: The New Affirmative Action Controversy (1991).
• Lucas A. Powe, The Warren Court and American Politics (2001).
• James L. Sundquist, Politics and Policy: The Eisenhower, Kennedy, and Johnson Years (1968).
• Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State (1990).
• Abagail M. Thernstrom, Whose Votes Count? Affirmative action and Minority Voting Rights (1987).
• Mark V. Tushnet, The NAACP’s Legal Strategy Against Segregated Education, 1925-50 (1983).
• Melvin I. Urofsky, A Conflict of Rights: The Supreme Court and Affirmative Action (1991).
• J. Harvie Wilkinson, From Brown to Bakke: The Supreme Court and School Integration, 1954-78 (1979).
• Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (1986).
• Raymond Wolters, Right Turn: William Bradford Reynolds, the Reagan Administration, and Black Civil Rights (1996).
• Raymond Wolters, The Burden of Brown: Thirty Years of School Desegregation (1984).