85. Schenck v. United States, 249 U.S. 47 (1919).
86. Frohwerk v. United States, 249 U.S. 204 (1919).
87. Abrams v. United States, 250 U.S. 616 (1919).
88. Recall that that’s what President Lincoln did to Clement Vallandingham, only Vallandingham was deported to the Confederate States of America.
89. Minersville School District v. Gobitis, 310 U.S. 586 (1940).
90. West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
91. Justice Jackson was the last Supreme Court justice who practiced law and served as a federal judge without having graduated from law school. He read for the bar and attended Albany Law School for a year.
92. 323 U.S. 214 (1944).
93. Dennis v. United States, 341 U.S. 494 ((1951).
94. United States v. O’Brien, 391 U.S. 367 (1968).
95. Although Justice Douglas apparently accepted the Court’s free-speech analysis, he dissented on the grounds that the draft itself raised constitutional problems under the Thirteenth Amendment.
96. Buckley v. Valeo, 424 U.S. 1 (1976).
97. Arizona Free Enterprise Clubs’ Freedom PAC v. Bennett, 131 S.Ct. 2806 (2011).
98. Holder v. Humanitarian Law Project, 561 U.S. (2010).
99. Ex parte Endo, 323 U.S. 283 (1944).
10. Madison, the Reluctant Poet
1. The material in this chapter is drawn from Bernard Schwartz, The Roots of the Bill of Rights, vol. 5 (New York: Chelsea House, 1980). I will spare you day-to-day footnoting. As James Thurber (and Casey Stengel) says, “You could look it up.”
INDEX
Abrams, Jacob, 191
Abrams v. United States, 111
accusation, Fifth Amendment and, 25
ACLU, 50, 63, 74, 139, 169
Flynn in, 192–93
Adams, Abigail, 156
Adams, John. See also Marbury v. Madison
Article III and, 207
censorship by, 6, 175, 185
press and, 6
Adams, John Quincy, 90
affirmative action, 183
Affordable Care Act, 135–36
Roberts, J., on, 172
African Americans. See civil rights demonstrations; racial minorities; slavery
Alien and Sedition Acts, 31
Jefferson and, 195
Marshall, James, and, 185–86
Alito, Samuel, 136–37
religion and, 145
Amar, Akhil, 225–26
Amazon, 9, 126
American Communist Party, 112, 192–93, 233n24
Flynn in, 193
Supreme Court and, 7, 111
American Political Science Association, 82–83, 232n7
Ames, Fisher, 219, 220
Anti-Federalists, 200, 201
anti-Semitism, 8
antislavery
censorship of, 31, 226n2
First Amendment and, 31
newspapers, 6
antitrust laws, 8
appellate courts, 157, 238n12
appellate jurisdiction, of Supreme Court, 161, 167, 169–71
Arab Spring, 32
Areopagitica (Milton), 125
aristocratic speakers
First Amendment and, 99–100, 105, 116–18
Free Speech Clause and, 143
taming, 116–18
Arizona Free Enterprise Club v. Bennett, 228n7
arrest, Fourth Amendment and, 25, 26
Article I
Committee of Eleven and, 213–14
Congress and, 199
First Amendment and, 204–5
House of Representatives and, 204
religion and, 209–10
Article III
Adams, John, and, 207
circuit judges and, 156–57, 162, 169–72
Committee of Eleven and, 214–15
Supreme Court and, 205–6
Article IV, 199, 241n44
Article VI, 199
federalism and, 205–6
Articles of Confederation, 198, 202, 207
aspirations
First Amendment and, 10–12, 109–16
Free Speech Clause and, 109–16
assembly. See Free Assembly Clause
association. See freedom of association
autonomous choice, First Amendment and, 8
autonomy, privacy and, 78
Bache, Benjamin Franklin, 6
bad tendency doctrine, 234n25
First Amendment and, 111
Baer, Elizabeth, 189–90
bail, Eighth Amendment and, 27
Baker v. Carr, 40–42
“one person, one vote” principle and, 177
Baldwin, Abraham, 207
Baldwin, Roger, 192–93
banks, Commerce Clause and, 177
Barkett, Rosemary, 50
Bayard, James, 154
Benson, Egbert, 207
on Committee of Style, 221
Bethel School District v. Fraser, 235n38
Bill of Rights. See also specific amendments
Committee of Eleven and, 206–17
conscience and, 144
criticism of, 185
democracy and, 2, 43
Founders and, 1
freedom in, 2
House of Representatives and, 217–22
judicial review and, 149–50
Marbury v. Madison and, 173
order of amendments in, 14–15, 228
ratification of, 19
reluctance to write, 197–223
Senate and, 222–23
states and, 30, 31, 223
Black, Charles, 225
Black, Hugo, 191, 192
blanket primary, 21, 228n7
Supreme Court and, 58
Bork, Robert, 33
Boudinot, Elias, 207
Boyd v. United States, 229n24
brainwashing, in public schools, 9
Brandeis, Louis, 11, 191
Abrams v. United States and, 111
First Amendment and, 8–9, 99
Whitney v. California and, 111
Brennan, William, Jr., 6
on campaign finance, 65–66
democracy and, 40–42
draft card burning and, 194
equality and, 230–31n17
living constitution of, 29, 177
“one person, one vote” principle and, 44, 74, 177
Breyer, Steven, 11
Bush v. Gore and, 73
egalitarian democracy and, 29
on McCutcheon v. Federal Election Commission, 74
purposivism and, 178
Brooklyn, racial minorities in, 50–51
Brown v. Board of Education, 179, 183
Buckley v. Valeo, 63–68, 82, 228n6, 232n46, 234n33
pure speech and, 177
Burger Court, 45
Burke, Aedanus, 207
Burke, Edmund, 219
Burnside, Ambrose, 187
Burr, Aaron, 158. See also Marbury v. Madison
Burwell v. Hobby Lobby, 136–37
Bush, George W., 171
Bush v. Gore, 41, 229n16
democracy and, 69–75
Equal Protection Clause and, 69
Republican Party and, 73
“safe-harbor” provision in, 189
California, blanket primary in, 58, 228n7
campaign finance, 20–21
Buckley v. Valeo and, 63–68, 82
Citizens United v. FEC and, 69, 70–71
corporations and, 69, 70–71, 73, 79–82
corruption and, 67
for democracy, 148–49
disclosure loopholes for, 79, 232n46
First Amendment and, 66, 67, 79–82
Free Press Clause and, 71–72, 80
Free Speech Clause and, 64–66
in New York City, 92
pure speech and, 64–65
Supreme Court and, 20–21, 39, 61–69, 79–82
tax cre
dit for, 92
Carter, Jimmy, 112
caucuses, in House of Representatives, 91
censorship
by Adams, John, 6, 175, 185
of antislavery, 31, 226n2
in democracy, 9
First Amendment and, 185
by government, 9, 122, 125, 233n18
by religion, 99
chaplains
in Congress, 143
in military, 142–43
Chase, Samuel, 162
checks and balances, for military, 23
child-labor laws, 181
Christian prayer, 143–44
Christian Scientists, 135
Church of Christ the Savior, 139–41
circuit judges, Article III and, 156–57, 162, 169–72
circuit riding, by Supreme Court, 154, 157, 162, 238n8, 238n12
Citizens United v. FEC, 69, 194
Kennedy on, 70–71, 74
citizenship
of president, 174
of voters, 47
city-states, democracy in, 35
civil law, 27. See also specific cases
civil rights demonstrations
Supreme Court and, 111
Warren Court and, 118
Civil War
Lincoln, A., and, 6, 186–87, 195
natural law and, 32
opposition to, 6
Petition Clause and, 89–90
slavery and, 176
Clinton, Bill, 112
CO. See conscientious objectors
Cold War, 92–193
Comcast, 126
Commerce Clause, 77
Committee of Eleven
Article I and, 213–14
Article III and, 214–15
Bill of Rights and, 206–17
federalism and, 221
Fifth Amendment and, 212–13
First Amendment and, 210–12
Fourth Amendment and, 213
Free Speech Clause and, 210
Grand Jury Clause and, 215
House of Representatives and, 217–22
jury trial and, 215
religion and, 209–10
separation of powers and, 215–16, 219
Third Amendment and, 212
Committee of Five, 207
Committee on Style, 221
communicative conduct
draft card burning as, 64–65, 123, 193–94
regulation of, 122–23
Supreme Court and, 122–23
Communism. See also American Communist Party
natural law and, 32
after World War II, 7
compelling interest
First Amendment and, 112
Free Speech Clause and, 121
Supreme Court and, 121
compulsory voting, 93–94
conduits, First Amendment and, 103–4, 125–26
Confederation Congress, 200
Congress. See also House of Representatives; Senate
Article I and, 199
campaign finance and, 20–21, 62–63
chaplains in, 143
compensation for, 204, 209
Constitution and, 150–51, 202
District of Columbia and, 168
in First Amendment, 5
as lame duck, 44, 157
pay raises for, 44
Petition Clause and, 90–91
Supreme Court and, 161, 168, 170, 171
Twentieth Amendment and, 44
Twenty-Seventh Amendment and, 44
Voting Rights Act and, 21
conscience. See also religious conscience; secular conscience
Bill of Rights and, 144
First Amendment and, 18–19, 133
Founders and, 30
Free Exercise Clause and, 146
Harlan and, 30
conscientious objectors (CO)
House of Representatives and, 220–21
Vietnam War and, 133–34, 137–38
Conservative Party, 63
Constitution. See also Bill of Rights; specific amendments; specific articles
ambiguity in, 178–79, 184
Congress and, 150–51, 202
democracy in, 75
dictionary meaning of words in, 174–75
federalism in, 75
Federalists and, 200–201
Free Press Clause and, 71
Fugitive Slave Clause of, 181
Hamilton and, 198
judicial review and, 149, 179–80
lapses in, 42–43
literalists and, 173–75
Marbury v. Madison and, 167
military and, 229n19
“one person, one vote” principle and, 177
originalism and, 175, 176–77
purposivism and, 177–78
ratification of, 199–202
separation of powers in, 75
slavery and, 175–76
textualists and, 173–75
Constitutional Convention, 176, 199, 202
Continental Association, 207
Continental Congress, 202, 207
convicted felons
in Florida, 49–50
voting by, 36, 45–46, 49–50
corporations
campaign finance and, 21, 69, 70–71, 73, 79–82
Due Process Clause and, 71
Equal Protection Clause and, 71
Free Press Clause and, 71–72
judicial review and, 181
Kennedy on, 73
as legal “persons,” 71
speech and, 9–10
Supreme Court and, 72
corruption, campaign finance and, 67
counsel. See right to counsel
Cranch, William, 156
Crawford v. Marion County, 69, 73–74, 229n12
criminal law
Amendments for, 25
jury trial for, 27
“cruel and unusual punishment,” in Eighth Amendment, 25, 27, 175
Cushing, William, 162
custodial interrogation, Fifth Amendment and, 25, 26, 28
Daley, Richard, 57
Darwinism
First Amendment and, 7
Holmes and, 182
data-gathering programs, search and seizure and, 28
death penalty, 27
Debs, Eugene, 6–7, 111, 189, 195
deck-chair theory, of First Amendment, 194–96
Declaration of Independence, 202, 207
democracy
Bill of Rights and, 2, 43
Brennan and, 40–42
Bush v. Gore and, 69–75
campaign finance for, 148–49
censorship in, 9
in Constitution, 75
as dysfunctional, 69–75
egalitarian, 29
in England, 35
equality and, 40–42
First Amendment and, 2, 11, 17–96
Free Exercise Clause and, 135
Free Speech Clause and, 20
freedom and, 2
freedom of association and, 87
judges and, 2
natural law and, 32
single-tier, 91–96
Supreme Court and, 22, 40–42
three-tiers of, 35–40
Democratic Party
gerrymandering by, 53–54
primary elections and, 56–61
Supreme Court and, 10, 109–10, 114–15, 182
voters for, 21
Dennis v. United States, 233n24
deregulation
First Amendment and, 10–12, 109–16
Free Speech Clause and, 109–16
District of Columbia
Congress and, 168
Marbury v. Madison and, 168–69
Twenty-Third Amendment and, 43
voting in, 43
District of Columbia Organic Act, 156
double-jeopardy, 204, 211, 212
Douglas, William O., 191, 192
draft card burning and, 194
Ninth Amendment and,
32
draft card burning
as communicative conduct, 64–65, 123, 193–94
Supreme Court and, 64–65, 111
Dred Scott v. Sandford, 90, 175, 181, 186
originalism and, 176
Duane, William, 185
Due Process Clause
corporations and, 71
of Fifth Amendment, 15, 27, 175
of Fourteenth Amendment, 31, 71, 77–78, 205
gender equity and, 78
Dworkin, Ronald, 179
egalitarian democracy, Breyer and, 29
1812 Overture (Tchaikovsky), 139
Eighteenth Amendment, 44
eighteen-year-olds voting, Twenty-Sixth Amendment and, 36
Eighth Amendment, 227n2
“cruel and unusual punishment” in, 25, 27, 175
Eisenhower, Dwight, 183
Electoral College. See also Marbury v. Madison
Georgia and, 237–38n9
Hayes and, 189
electoral districts. See also gerrymandering
for incumbents, 22
in Louisiana, 78
in North Carolina, 51, 84
“one person, one vote” principle and, 53–54
for racial minorities, 21
Supreme Court and, 22, 36
voting turnout and, 47
Eleventh Amendment, 44
Ellery, Christopher, 158, 239n14
Ellsworth, Oliver, 155, 238n10
Emancipation Proclamation, 186
England
democracy in, 35
“equity of the statute” in, 30
free speech in, 105
inclusio unis est exclusio alterium in, 29–30
judicial review in, 180–81, 240n34
Petition Clause and, 90
religious wars in, 24
universal suffrage in, 35
Enlightenment, 207
Equal Protection Clause
Bush v. Gore and, 69
corporations and, 71
Florida and, 49–50
of Fourteenth Amendment, 41, 47–50, 54, 69, 71, 78, 230n4
gerrymandering and, 54
equality
Article IV and, 199
Brennan and, 230–31n17
democracy and, 40–42
Fourteenth Amendment and, 44
gerrymandering and, 84
Jefferson and, 153
equality test. See “one person, one vote” principle
“equity of the statute,” 30, 229–30n25
Escher, M.C., 75
Establishment Clause
of First Amendment, 18, 76, 98, 132, 141, 142, 144–47
Free Speech Clause and, 143–44
Supreme Court and, 142, 144–47
evidence wrongfully obtained, Fourth Amendment and, 26
Exceptions and Regulations Clause, in Marbury v. Madison, 170, 188
exclusionary rule, Fourth Amendment and, 26, 123
fair political representation
Constitution and, 43
First Amendment and, 14, 52