THE STORY OF THE EVOLUTION OF THE United States Constitution continues even today. During the two and a quarter centuries since the Constitution took effect, the operations of the federal, state, and local governments have undergone remarkable changes. With those changes, successive generations of Americans have found that their relationship with those governments has also changed. The framers of the Constitution provided one explicit mechanism by which to alter the way the federal government does its business: as spelled out in Article V, Congress or, upon application of two-thirds of the state legislature, a specially called convention, may propose constitutional amendments. Those proposed amendments must then be approved by three-quarters of the state legislatures or state conventions before being adopted. The framers did not believe that amending the Constitution should be a quick or easy task, nor has it proven to be such. Only twenty-seven amendments have been enacted since the Constitution was first adopted, and ten of those—the Bill of Rights—were added only two years after the new government was launched.

But amendments have not been the only mechanism for constitutional change. All three branches of the federal government—the Congress, the executive, and the federal judiciary—have themselves been agents of change. An important part of the job of America’s political leaders—elected and appointed—has been to respond to the extraordinary pace of social, economic, political, and cultural change that has marked the history of America since its first settlements. In responding to those changes, our political leaders have made decisions that have sometimes altered our understanding of the way the United States Constitution functions in serving “We the People.”

This final chapter is not intended to describe all the events that have shaped the U.S. Constitution. Instead, it offers brief summaries of a select number of Supreme Court decisions that have had a profound influence on our constitutional history. The selection of decisions, from among the several thousand rendered by the Supreme Court since the federal government commenced operation in 1789, is admittedly a subjective one. There are no doubt many decisions that constitutional scholars might prefer to some that I have chosen to summarize here. But my choices are not arbitrary; they have been informed by four important recurring issues and themes in American history:

1. The gradual acceptance of the principle of equality as a central value in American life.

2. The ever-changing debate within America over the meaning of federalismthe relationship between our national, state, and local governments.

3. The continuing debate within America over the appropriate division of power among the three branches of our federal government: the Congress, the president, and the judiciary.

4. The steady expansion of the application and interpretation of the rights granted to all American citizens by the federal Bill of Rights and by subsequent amendments to the Constitution.


MARBURY V. MADISON (1803). ALTHOUGH MANY OF THE framers of the Constitution believed that the newly created Supreme Court might have the power to review the constitutionality of a federal law, the court’s power of “judicial review” is not explicitly spelled out in the Constitution. In March 1801, just before his term of office expired, Federalist president John Adams made a series of “midnight appointments” of federal judges in a last-minute attempt to ensure that the federal judiciary would be staffed with judges loyal to his political principles. Most of those appointed to the judgeships were subsequently installed in their new positions, but several of them, including William Marbury, who had been appointed justice of the peace in the District of Columbia, did not have their commissions delivered to them before Adams left office. When Thomas Jefferson, a member of the opposing Republican Party, assumed the presidency, he refused to issue Marbury his judicial commission. Marbury then petitioned the Supreme Court, whose chief justice was now Jefferson’s bitter political enemy John Marshall, asking the court to issue a writ of mandamus (an edict commanding a government official to perform a particular action) ordering James Madison, the secretary of state, to deliver his commission to him. Justice Marshall conceded to President Jefferson a small victory by refusing to order Madison to deliver Marbury’s commission, but much more was at stake in the ruling than poor Marbury’s position as justice of the peace.

Although Marshall believed that Marbury had a legitimate right to his commission, he went on to conclude that the Supreme Court had no legal authority to force Secretary of State Madison to issue the commission to him. Although a portion of the Judiciary Act of 1789 had given the Court the right to issue writs of mandamus, Marshall and his fellow justices ruled that that portion of the act was “repugnant to the Constitution.” And then he made a bold leap, pronouncing:

It is emphatically the province and duty of the Judicial Department to say what the law is. . . . So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

With that statement, the Supreme Court held the Judiciary Act of 1789 to be unconstitutional and, in the process, asserted the power of judicial review—the right of the Supreme Court to strike down an act it believes to be unconstitutional. In asserting that right, the Supreme Court set the judicial branch, which had been viewed by the framers of the Constitution as the least powerful and least consequential of the three branches of government, on a course to becoming a genuinely coequal branch of government.

The decision in Marbury v. Madison was carefully crafted so as not to appear to assert a sweeping power of judicial review over all pieces of congressional or state legislation, and because the specific issue involved was a relatively narrow one, Marshall’s ruling provoked little opposition. Indeed, the Supreme Court in subsequent years would only sparingly use its newly claimed power of judicial review over laws passed by Congress. It would not strike down another federal law until its ruling in the Dred Scott decision in 1857.


MCCULLOCH V. MARYLAND (1819). AS WE HAVE SEEN in chapter 5, the proposal by Secretary of the Treasury Alexander Hamilton to create a Bank of the United States, subsequently enacted by Congress and signed into law by President Washington, provoked two competing constitutional doctrines: the “strict constructionist” doctrine articulated by Thomas Jefferson and the “broad constructionist” doctrine favored by Hamilton.

In 1816 Congress reaffirmed the broad-constructionist principles underlying the creation of the First Bank of the United States by offering a new charter to a Second Bank of the United States. The state of Maryland attempted to challenge the constitutionality of the bank by imposing a tax on its Baltimore branch that would have effectively made it impossible for it to do its business. The Supreme Court, with John Marshall writing the decision, ruled that Maryland did not have the right to interfere with the bank’s operations and, more important, also affirmed the constitutionality of the bank by using a broad-constructionist reasoning that there were “implied powers” in addition to those explicitly enumerated in Article II of the Constitution.

The McCulloch case was just one of many cases in which rulings of the Marshall court served to promote the nation’s economic development while at the same time fashioning a new conception of federalism by strengthening the power of the federal government at the expense of the state governments. Among the most important of these cases are Fletcher v. Peck (1810), Dartmouth College v. Woodward (1819), and Gibbons v. Ogden (1824).

DRED SCOTT V. SANDFORD (1857). THE FRAMERS OF the Constitution in Philadelphia had conspicuously failed to deal with what historian Bernard DeVoto called the “paradox at the nation’s core”: the existence of the institution of chattel slavery in a nation founded on principles of liberty and equality. The consequences of that failure became all the more acute in the aftermath of America’s war with Mexico (1846-48). At the conclusion of that war, the ambitiously expanding nation found itself with vast quantities of new territory acquired from the vanquished Mexican government. The question facing the U.S. government was, what would be the status of slavery in these newly acquired territories? This was an issue that had divided North and South since 1819, when Missouri, a slaveholding territory, had applied for admission to the union. Although the United States Congress had fashioned some temporary compromises between the interests of North and South (the Missouri Compromise of 1820, the Compromise of 1850, and the Kansas-Nebraska Act of 1854), it was becoming increasingly clear that the issue of the status of slavery in the territories had put the two sections of the country on a collision course.

The Supreme Court’s ruling in the Dred Scott case may well be the worst decision in the history of the Court. It was a bad decision not merely because of its dubious constitutional logic (although there was some of that) but, more importantly, because it was rendered on the assumption that nine unelected judges could resolve an issue—that of slavery in the territories—that democratic majorities in the United States Congress had found themselves unable to resolve and that deeply divided the people of the country as a whole. Seven of the nine justices (five southern and two northern) ruled against the petition of Dred Scott, a Missouri slave who had been taken by his owner first into the free state of Illinois and then later into the free territory (under the terms of the Missouri Compromise) of Wisconsin. Scott claimed, therefore, that he should be considered a free man. The justices ruled that because Scott was legally a form of property, he had no right to sue in a federal court and therefore was not entitled to his freedom. That could have been the end of the case, and although it would have denied Scott the freedom he sought, it would not have shaken the very foundations of the American union. But the justices did not stop there. Abandoning long-held traditions of “judicial restraint” (the principle that justices should generally defer to the legislative branch in their rulings and that they should as much as possible base their decisions on existing legal precedents), the justices in the majority in the Dred Scott decision went on to rule that the part of the Missouri Compromise prohibiting slavery north of the 36°30’ latitude line violated Fifth Amendment protections of the ownership of property. By its expansive definition of the right to own slave property, the Dred Scott decision opened up the possibility that the right to own slaves could not be constitutionally prohibited in any territory of the United States. Any decision by the Supreme Court on an issue as explosive as that involving slavery in the territories would have been a controversial one, but the court, by abandoning principles of judicial restraint, made an already difficult situation even more so. The decision was hailed as a great victory by southern pro-slavery advocates, but it also served to heighten the sectional conflict between North and South and accelerated the course of the nation toward civil war.

PLESSY V. FERGUSON (1896). THE AMERICAN CIVIL WAR remains the most traumatic event in the nation’s history. It was the result at least in part of the failure of the Constitution to provide a workable mechanism for resolving the increasingly bitter divisions between North and South over the issue of slavery. But one consequence of that bloody war, in which nearly six hundred thousand Americans lost their lives, was the opportunity to eliminate that paradox at the nation’s core—the opportunity not only to abolish slavery but also to insert into the Constitution fundamental protections for the rights of freed slaves. The passage of the Thirteenth, Fourteenth, and Fifteenth Amendments was an important step in transforming the egalitarian rhetoric of the preamble of the Declaration of Independence into binding constitutional law. The language of the Fourteenth Amendment in particular, with its stipulation that no state can deprive “any person of life, liberty, or property, without due process of law” and its guarantee of “equal protection of the laws” to all citizens, seemed to offer the promise of an America whose Constitution and laws would finally be in harmony with the egalitarian rhetoric that had justified the revolt against British rule.

But those amendments were not in themselves sufficient to protect the rights of freemen, and in the face of continuing intransigence in the South, a northern, Republican-controlled Congress embarked on an attempt to “reconstruct” the states of the former Confederacy and, in the process, to ensure that the civil rights of newly freed slaves were not violated. The so-called era of Reconstruction had run its course by the mid-1870s, and as the commitment of white Americans to equal rights for all waned, many of the post- Civil War statutes aimed at ensuring equal protection under the law came under attack. The ruling in Plessy v. Ferguson was the culmination of that unfortunate trend.

During that same period, Congress and the courts were confronted with additional challenges with respect to civil rights. With the readmission of all the states of the former Confederacy, the guarantees of equal rights to freed slaves provided by the Fourteenth and Fifteenth Amendments were gradually weakened. Perhaps reflecting some fatigue from the political and sectional battles of the Reconstruction era, the rulings of the Supreme Court during the last three decades of the nineteenth century tended to weaken America’s commitment to the Fourteenth Amendment’s promise of equal protection under the law.

In the Slaughter-House Cases (1873), United States v. Cruikshank (1876), the Civil Rights Cases (1883), and finally in Plessy v. Ferguson (1896), the court steadily narrowed the extent to which the provisions of the Fourteenth Amendment could be used to prevent state governments or private companies and institutions from infringing on the rights of American citizens.

The decision in Plessy turned on the constitutionality of an 1890 Louisiana statute requiring separate railway cars for black passengers and white passengers. In 1892 Homer Plessy, a light-skinned African American working in concert with a group of African American professionals in New Orleans who wished to test the constitutionality of the law, boarded a “whites only” car and was promptly arrested. After the case had worked its way through the lower federal courts, which consistently ruled against Plessy, the Supreme Court agreed to hear the case in 1896.

In a seven-to-one decision, with one justice not participating, the Court rejected Plessy’s contention that enforcing separation of the races in the railway cars was a violation of the “equal protection” clause of the Fourteenth Amendment. Justice Henry Billings Brown, who wrote the majority opinion, maintained that the “enforced separation of the two races” did not necessarily “stamp the colored race with a badge of inferiority.” Then, revealing the full extent of the racial assumptions underlying the decision, he wrote:

Legislation is powerless to eradicate racial instincts or to abolish distinctions based on physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane.

Justice John Marshall Harlan, the only justice to side with Plessy, wrote an impassioned dissent. He scornfully rejected the argument supporting “separate but equal” facilities for the two races, and then asserted that “in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.”

Harlan’s powerful dissent notwithstanding, the decision in Plessy would put into place the doctrine of “separate but equal,” one that would serve to justify both state-sponsored and privately imposed segregation across a wide range of areas, from restaurants to public accommodations to public schools.

SCHENCK V. UNITED STATES (1919) AND GITLOW V. NEW YORK (1925). These two cases each deal with the free speech guarantees of the First Amendment, but the Gitlow case raised an additional question that has had important ramifications for constitutional interpretation up to the present day.

During the presidential administration of Woodrow Wilson, in the aftermath of World War I, the Supreme Court made one of its most important rulings dealing with issues of national security and free speech. In Schenck v. United States, the court upheld the Espionage Act of 1917, a congressional statute aimed at punishing anyone engaged in actions that might “be used to the injury” of the United States war effort. In that case, the Court ruled that the actions of Charles Schenck, a member of the Socialist Party who had distributed pamphlets opposing the draft during World War I, had produced such injury and therefore were not protected by the free speech guarantees of the First Amendment. In that decision Justice Oliver Wendell Holmes, Jr., noted that the right of free speech is not an absolute one, using the following example: “Free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic.” Holmes then offered a means of resolving the potential conflict between First Amendment guarantees of free speech and the need for public order: the question to be determined, Holmes reasoned, was whether the actions or words being employed “might create a clear and present danger” to cause “substantive evils.” In general, the courts have tended to interpret the meaning of “clear and present danger” in a way that gives government greater powers to restrict free speech during times of war.

The case of Gitlow v. New York involved yet another Socialist, Benjamin Gitlow, accused of distributing subversive literature, and as in the Schenck case, the court upheld Gitlow’s conviction. Indeed, the court modified the “clear and present danger” doctrine laid down by Justice Holmes and substituted a much looser standard—that of “dangerous tendency.”

Perhaps more important in the long run, the justices’ opinion in the Gitlow case also asserted that the free speech and free press protections offered by the First Amendment not only applied to actions taken by the federal government but also to those taken by state governments. Justice Edward Sanford, writing for the majority, asserted, “Freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.” This interpretation of the clause in the Fourteenth Amendment guaranteeing “equal protection of the laws” would mark the beginning of the “incorporation” of many of the guarantees of the Bill of Rights into the Fourteenth Amendment, thus preventing the states from acting in ways contrary to those guarantees. In subsequent decades most of the amendments contained in the Bill of Rights—with the exceptions of the Second Amendment’s guarantee of the right to bear arms, the Fifth Amendment’s guarantee of a defendant’s right to have his or her case heard by a grand jury, and the Seventh Amendment’s guarantee of a right to a jury trial in civil cases—have come under the protections of the “incorporation doctrine,” meaning that state governments are bound by the same constitutional provisions in those cases as the federal government.

BROWN V. BOARD OF EDUCATION OF TOPEKA (1954). The Supreme Court’s unanimous decision to overturn the nearly sixty-year-old “separate but equal” doctrine laid down in Plessy v. Ferguson was one of the most momentous decisions ever made by the Supreme Court and indeed one of the most far-reaching steps toward social justice taken by any branch of the federal government.

The case had its origins in a 1951 class-action suit filed by thirteen parents on behalf of their twenty children against the Topeka, Kansas, board of education. The parents, all of whom lived in integrated neighborhoods, attempted to enroll their children in the nearest neighborhood school but were prevented from doing so because those schools were designated for whites only. When the United States District Court for the District of Kansas heard the case, it ruled in favor of the school district, asserting that the quality of the facilities, curriculum, and teachers in the white and African American schools in the district were equal and citing Plessy v. Ferguson as precedent for upholding the doctrine of “separate but equal.”

The Supreme Court agreed to hear an appeal of the Brown case in 1953, along with four similar cases from South Carolina, Virginia, Delaware, and Washington, D.C., and in May 1954 it handed down its ruling. The newly appointed chief justice, former California governor Earl Warren, was well aware of the political and social implications of the case. He not only wrote the opinion in the case but, by careful political and diplomatic maneuvering behind the scenes, persuaded even those justices who may have been reluctant to overturn the long-standing precedent of Plessy v. Ferguson to join in a unanimous ruling.

Warren’s opinion was, by the standard of many twenty-first-century court opinions, relatively brief, but it was forcefully argued. The central conclusion in Warren’s opinion, which went directly against the earlier ruling in Plessy, was that even if the quality of the facilities and teachers in the segregated schools was equal, the very fact of segregation was harmful to the African American students and therefore unconstitutional under the equal protection clause of the Fourteenth Amendment. Warren did not support his conclusion solely on the intent of those members of Congress who had framed the Fourteenth Amendment, for he knew that opinions among congressmen on the meaning and scope of the amendment were divided and inconclusive. Instead, he acknowledged that “we cannot turn the clock back to 1868, when the amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.” Rather, he argued, the court “must consider public education in the light of its full development and its present place in American life.” Emphasizing the central importance of education in promoting citizenship and as a road to economic and social success, he concluded that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education,” and he asserted that education “must be made available to all on equal terms.” And then, relying on twentieth-century psychological and sociological studies informed by new knowledge since the Plessy decision was rendered, Warren concluded that in the field of public education the doctrine of “ ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

The Brown decision was the beginning, but hardly the end, of the movement not only to dismantle segregation but also to ensure equal opportunity to minorities in all aspects of American life. The Brown decision could not be implemented by judicial edict alone, and many southern states resisted integrating their schools for many years thereafter. But over the course of the next two decades, the system of state-sponsored segregation of the schools was dismantled, and the move to desegregate the schools gave impetus to a civil rights movement in which Americans, black and white, mobilized to end segregation in all aspects of public life.

The decision in Brown v. Board of Education had a few important judicial antecedents, and students of the constitutional debates over equal rights for African Americans might also wish to consult the cases of Sweatt v. Painter (1950) and McLaurin v. Oklahoma State Regents for Higher Education (1950). Perhaps more important, the constitutional discussion about the meaning of the promise of equality proclaimed in both the Declaration of Independence and the Fourteenth Amendment is still going on today. The Supreme Court, in recent rulings on so-called affirmative action cases (see, for example, Regents of the University of California v. Bakke, 1978 and Grutter v. Bollinger, 2003), is still trying to find the proper balance between a legal system founded on the principle of equal opportunity and one that prescribes a set of results based on racial categories.

GIDEON V. WAINWRIGHT (1963) AND MIRANDA V. ARIZONA (1966). The civil rights movement of the 1960s, although aimed primarily at securing equal treatment for African Americans, had other ramifications in the legal realm. The emergence of legal aid associations, aimed at securing full legal rights for accused criminals, led to a series of Supreme Court rulings that would, in the first instance, grant additional rights to individuals accused of crimes and, as a consequence, require that law-enforcement officers use greater care in the apprehension, arrest, and questioning of individuals suspected of committing a crime.

The landmark case in this legal revolution was Gideon v. Wainwright. The accused in the case, Clarence Earl Gideon, was arrested in Panama City, Florida, on suspicion of having broken into a poolroom, smashed a soda machine, and stolen a small amount of money from a cash register. Although the courts had previously ruled that defendants charged with a capital crime (most often in cases involving the death penalty) were entitled to legal counsel, since this was a case of simple petty larceny the state of Florida ruled that the indigent Gideon was not entitled to court-appointed legal counsel. He attempted to defend himself against the charges, but the jury found him guilty and sentenced him to five years in prison.

Acting on his own behalf, Gideon sought to appeal the decision, claiming that his Sixth Amendment right to a fair trial had been violated by his inability to have competent legal counsel represent him. Against great odds, he was successful in persuading the Supreme Court to hear his case, appointing Abe Fortas, a future Supreme Court justice himself, to defend him. In a unanimous decision, the court ruled that the right to legal counsel was guaranteed by the Sixth Amendment and was “fundamental and essential to a fair trial.” Citing the due process clause of the Fourteenth Amendment, the Court, again using the incorporation doctrine, ruled that the constitutional guarantees of the Sixth Amendment should be applied to the actions of the state governments as well as the federal government.

The Miranda decision extended the legal rights of accused criminals, but did so in a manner that aroused greater controversy. In that case, Ernesto Miranda was arrested for robbery and later confessed to raping an eighteen-year-old woman a few days before committing the robbery. Miranda’s confession, together with a positive identification by the victim, led to his conviction. In a five-to-four ruling, Chief Justice Earl Warren ruled that Miranda’s Fifth Amendment rights against self-incrimination had been violated by harsh interrogation techniques and that his Sixth Amendment rights had been violated because he did not have a lawyer present at the interrogation. In Warren’s words, a suspect brought in for questioning in connection with a possible crime “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

The Miranda decision was very controversial at the time that it was handed down, and some continue to complain that it has placed unnecessary constraints on law-enforcement officers in the performance of their duties. However, subsequent Supreme Court decisions have further refined and defined the ways in which an accused’s “Miranda rights” might be interpreted, and as police departments have incorporated the principles of the Miranda decision into their training manuals, most constitutional scholars and law-enforcement officials have concluded that the Mirandadecision was on balance an important step forward in America’s criminal justice system.

ROE V. WADE (1973) IS ONE OF THE most controversial cases ever heard by the Supreme Court. The majority opinion, written by Justice Harry Blackmun, held that a woman has a right to terminate her pregnancy—in common parlance, to have an abortion—at any time up until the fetus became “viable,” defined as the point at which the fetus has the potential “to live outside the mother’s womb.” The Court, which supported the majority opinion by a seven-to-two margin, based its ruling on a constitutional “right of privacy.” Though nowhere stated in the body of the Constitution or its amendments, privacy was, in the view of the justices, a fundamental right protected by the “due process” clause of the Fourteenth Amendment. Although not all the justices agreed on the matter, at least some justices, and many jurists and scholars subsequently, have believed that the right of privacy is one of the unenumerated rights anticipated in the Ninth Amendment.

The ruling had the effect of invalidating many state laws restricting the right to abortion and setting off a storm of protest, which has not abated even today. Like so many landmark Supreme Court cases, Roe v. Wade involved “rights in conflict,” the dilemma presented when one set of rights conflicts with another: in this case the freedom of a woman to make her own decisions about whether to terminate a pregnancy and the belief held by many Americans that the fetus—an unborn living being—has a fundamental “right to life.” Almost all the Supreme Court cases involving competing sets of rights have the potential to excite controversy, but Roe v. Wade moved into particularly volatile territory because the issues involved were not merely legal but also moral and religious, and because the opinions of Americans on those issues were—and continue to be—deeply divided.

In the years since the Roe decision was handed down, the Supreme Court has heard several other cases involving the conditions under which state and federal governments might restrict abortions. The effect of these decisions, which include Planned Parenthood v. Casey (1992)Stenberg v. Carhart (2000), and Gonzales v. Carhart (2007), has been to give governmental entities slightly greater ability to limit the circumstances under which abortions might be performed. For example, in Planned Parenthood v. Casey the Court ruled that the state of Pennsylvania might require that doctors provide women contemplating an abortion with information about possible health risks and complications (the doctrine of “informed consent”); that minors seeking an abortion receive consent from a parent or guardian (the doctrine of “parental consent”); and that the state impose a twenty-four-hour waiting period before a woman could proceed with her requested abortion. Given the unsettled state of public opinion on the question of whether and under what circumstances women should be allowed to terminate their pregnancy, it is likely that the Supreme Court will be confronted with further contestation on these issues in the future.

UNITED STATES V. NIXON (1974) WAS A CASE that raised issues relating to the extent and limits of executive power in the name of national security, the nature of executive privilege, and the relationship between the executive and judicial branches in a system of government founded on the principles of separation of power and checks and balances. It is also important in that the judgment in the case had an important impact on an unprecedented event in American history: the resignation of a sitting president, Richard M. Nixon, in the face of near-certain impeachment by the United States House of Representatives.

The facts of the case are part of one of the great political dramas of American history—the so-called Watergate scandal. In June 1972, five burglars, with authorization from Republican Party officials and perhaps President Nixon himself, broke into the Democratic Party headquarters in the Watergate building complex in Washington, D.C., in order to obtain information about George McGovern, President Nixon’s opponent in the 1972 presidential election. In the ensuing investigation, seven of President Nixon’s close advisers were indicted by a grand jury. In the course of that investigation, it was also discovered that President Nixon had a collection of recorded tapes in his office that would be likely to shed light on whether members of the president’s staff—and indeed the president himself—had engaged in a cover-up of the Watergate affair.

President Nixon resisted turning over the tapes, arguing that matters involving national security might be compromised by the release of the tapes and citing “executive privilege” as the basis for his refusal to turn over the full transcripts of the tapes. The question of whether President Nixon should be compelled to turn over the tapes or transcripts was initially heard in the U.S. District Court in Washington, D.C. The court ruled that the president should reveal the full content of the tapes—a decision that Nixon, citing executive privilege, again resisted. The Supreme Court heard the case on July 8, 1974, and handed down its decision on July 24.

The Court ruled unanimously (8-0, with Justice William Rehnquist recusing himself because he had previously served in the Nixon administration) that President Nixon must turn over the tapes. Notably, Chief Justice Warren Burger, who had been appointed to his position by President Nixon in 1969, wrote the majority opinion. Burger did not find that that there were sufficient issues of national security to justify withholding the tapes, nor was he persuaded that issues of separation of powers or of the general need to keep executive communications confidential were sufficient to sustain a claim of “executive privilege.” In Burger’s words: “Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the . . . [absolute] confidentiality of Presidential communications.”

The immediate effect of the decision in United States v. Nixon was to force the resignation of President Nixon, just a few weeks later, on August 9, 1974, because as the content of the Nixon White House tapes was revealed, the president’s impeachment by the House of Representatives seemed certain and his conviction by the Senate highly likely. More generally, the decision made it more difficult for any subsequent president to withhold information from other branches of the federal government or from the public simply by asserting the right of executive privilege.


THE VOLUME OF WRITING ON THE ORIGINS, creation, and evolution of the American Constitution is vast, but for the student who wishes to learn more about the particular topics covered in this book, here is a brief listing of some of the most important works written about the American Revolution and Constitution.


The classic work on the drafting and philosophy of the Declaration of Independence is Carl Becker, The Declaration of Independence: A Study in the History of Political Ideas (New York: Knopf, 1922). An excellent recent account of the larger context in which the Declaration was forged is Pauline Maier, American Scripture: Making the Declaration of Independence (New York: Knopf, 1997). David Armitage, The Declaration of Independence: A Global History (Cambridge, MA: Harvard University Press, 2007) views the wider implications of the Declaration of Independence.


The starting point for understanding how the Constitution was created and what the framers of that document intended is the extensive notes kept by James Madison during the Constitutional Convention. Those notes, together with many other documents relating to the creation of the Constitution, can be found in Max Farrand, The Records of the Federal Convention of 1787, 4 vols., rev. ed. (New Haven, CT: Yale University Press, 1937, repr. 1966). Jack N. Rakove, ed., The Annotated U.S. Constitution and Declaration of Independence (Cambridge, MA: Harvard University Press, 2009) presents extensively annotated versions of both the Declaration of Independence and the Constitution. For an even more detailed analysis of each provision and amendment of the Constitution, see John R. Vile, A Companion to the United States Constitution and Its Amendments, 4th edition (Westport, CT: Praeger, 2006). See also Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2005); and Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Knopf, 1996).


The authoritative scholarly edition, from which the excerpts in this volume are taken, is Jacob Cooke, ed., The Federalist (Middletown, CT: Wesleyan University Press, 1966). Among the dozens of works that have analyzed The Federalist Papers, a couple of the most useful are David Epstein, The Political Theory of The Federalist (Chicago: University of Chicago Press, 1982); and Garry Wills, Explaining America: The Federalist (Garden City, NY: Double-day, 1981).


An excellent, brief survey of the revolutionary era is Gordon S. Wood, The American Revolution: A History (New York: Modern Library, 2003). Among the most influential works on the American Revolution are Bernard Bailyn, Ideological Origins of the American Revolution, enlarged ed. (Cambridge, MA: Harvard University Press, 1992); Robert Middlekauf, The Glorious Cause: The American Revolution , 1763-1789 (New York: Oxford University Press, 1982); Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776 (New York: Knopf, 1972); and Gordon Wood, The Radicalism of the American Revolution (New York: Knopf, 1992).


The story of the extraordinary challenges and changes occurring within America during the period between the Declaration of Independence and the framing of the Constitution is best told by Gordon Wood in The Creation of the American Republic, 1776-1787 (Chapel Hill, NC: University of North Carolina Press, 1969). See also Jack Rakove, The Beginnings of National Politics: An Interpretive History of the Continental Congress (New York: Knopf, 1979); and Forrest McDonald, E Pluribus Unum: The Formation of the American Republic, 1776-1790 (Boston: Houghton Mifflin, 1965).


The most recent, comprehensive account of the Philadelphia Convention is Richard R. Beeman, Plain Honest Men: The Making of the American Constitution (New York: Random House, 2009). An older, dramatized account is Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention, May to September, 1787 (Boston: Little, Brown, 1966). See also Richard Bernstein, Are We to Be a Nation? The Making of the American Constitution (Cambridge, MA: Harvard University Press, 1987); and Clinton Rossiter, 1787: The Grand Convention (New York: Macmillan, 1966).


Merrill Jensen, John Kaminski, and Gaspare Saladino, eds., The Documentary History of the Ratification of the Constitution , twenty-one volumes to date (Madison, WI: State Historical Society of Wisconsin, 1976-) have nearly completed the monumental project of publishing the definitive collection of all of the known primary sources relating to the ratification of the Constitution. Secondary works on ratification are Robert Alan Rutland, The Ordeal of the Constitution: The Antifederalists and the Ratification Struggle of 1787-1788 (Norman: University of Oklahoma Press, 1966); Saul Cornell, The Other Founders: Antifederalism and the Dissenting Tradition in America, 1788-1828 (Chapel Hill: University of North Carolina Press, 1999); and Michael Allen Gillespie and Michael Lienesch, eds., Ratifying the Constitution (Lawrence: University Press of Kansas, 1989).


Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (New York: Oxford University Press, 2009) is a monumental account of the critical early years of the young republic. For an excellent, brief account, see James Roger Sharp, American Politics in the Early Republic: The New Nation in Crisis (New Haven, CT: Yale University Press, 1993). George Washington’s critically important role in establishing government under the Constitution is discussed in innumerable biographies of America’s first president; one of the best is Joseph Ellis, His Excellency, George Washington (New York: Knopf, 2004).


This is a vast subject area encompassing nearly all aspects of America’s history. A few of the notable books among the hundreds on the topic are John A. Garraty, ed., Quarrels that Have Shaped the Constitution, rev. ed. (New York: Harper and Row, 1987); Herman Belz, Winifred Harbison, and Alfred H. Kelly, The American Constitution: Its Origins and Development, 7th ed. (New York: W.W. Norton, 1991); Joseph F. Menez and John R. Vile, Summaries of Leading Cases on the Constitution, 14th ed. (Lanham, MD: Rowman and Littlefield, 2004); Harold Hyman and William M. Wiecek, Equal Justice Under Law: Constitutional Development, 1835-1875 (New York: Harper and Row, 1982); and William Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, MA: Harvard University Press, 1988).

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