3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
AMENDMENT 15
1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
2. The Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT 16
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
AMENDMENT 17
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
AMENDMENT 18
1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
AMENDMENT 19
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT 20
1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.
3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
AMENDMENT 21
1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
3. The article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
AMENDMENT 22
1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President, when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.
2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
AMENDMENT 23
1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
2. The Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT 24
1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
2. The Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT 25
1. In case of the removal of the President from offi
ce or of his death or resignation, the Vice President shall become President.
2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
AMENDMENT 26
1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
2. The Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT 27
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
This book is dedicated to my law clerks, who helped me learn, research, and appreciate the Court’s history, and to Craig Joyce, who encouraged me to write this book, Out of Order.
It is written after my retirement as a Supreme Court Justice and with the benefit of twenty-five years of service on the Court. I began my service there with admiration for the Court but trepidation about my role as a Justice. I look back on it with continued admiration for the Court and for my colleagues there. The Court is as much needed today as it was when it began. Long may it survive!
NOTES
INTRODUCTION
1. Richard Beeman, Plain, Honest Men: The Making of the American Constitution (New York: Random House, 2009), p. 106.
2. Jesse Lee, “The President’s Remarks on Justice Souter,” (2009), available at http://www.whitehouse.gov/blog/09/05/01/The-Presidents-Remarks-on-Justice-Souter.
3. Gerhard Casper and Richard A. Posner, The Workload of the Supreme Court (Chicago: American Bar Foundation, 1976), p. 16.
4. Stephen M. Shapiro, “Oral Argument in the Supreme Court: The Felt Necessities of the Time,” in Yearbook of the Supreme Court History Society 1985, p. 22.
5. Charles Warren, The Supreme Court in United States History, vol. 1 (Boston: Little, Brown, 1923), p. 471.
6. Shapiro, “Oral Argument in the Supreme Court,” pp. 23, 29.
LOOMING LARGE
Historic Intersections of the President and the Supreme Court
1. Thomas Jefferson to William Johnson, June 12, 1823, available at http://www.let.rug.nl/usa/P/tj3/writings/brf/jefl272.htm.
2. Thomas Jefferson to John Tyler, May 26, 1810, available at http://www.let.rug.nl/usa/P/tj3/writings/brf/jefl205.htm.
3. Thomas Jefferson to Thomas Ritchie, Dec. 25, 1820, available at http://www.let.rug.nl/usa/P/tj3/writings/brf/jefl263.htm.
4. Joseph J. Ellis, American Sphinx: The Character of Thomas Jefferson (New York: Knopf, 1997), p. 176.
5. Ibid., p. 175.
6. Marbury v. Madison, 1 Cranch 137, 177, 180 (1803).
7. Ex parte Merryman, 17 F. Cas. 144, 153 (C.C.D. Md. 1861).
8. Abraham Lincoln, “Message to Congress in Special Session” (1861), in Abraham Lincoln: Speeches and Writings, 1859–1865 (New York: Library of America, 1989), p. 253.
9. Abraham Lincoln, “Speech at Edwardsville,” Sept. 11, 1854, in The Collected Works of Abraham Lincoln: 1858–1860, Vol. 3 (New Brunswick, NJ: Rutgers University Press, 1953), p. 91.
10. Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952).
11. Ken Gormley, “Foreword: President Truman and the Steel Seizure Case: A Symposium,” Duquesne Law Review 41 (2003), pp. 675–76.
12. Id. at 676.
13. Hamdi v. Rumsfeld, 542 U.S. 507, 532 (2004).
14. Id. at 536.
15. Ibid.
16. Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006).
17. Boumediene v. Bush, 553 U.S. 723, 798 (2008).
THE CALL TO SERVE
Judicial Appointments
1. Marbury v. Madison, 1 Cranch 137 (1803).
2. McCulloch v. Maryland, 4 Wheat. 316 (1819).
3. R. Kent Newmyer, “A Note on the Whig Politics of Justice Joseph Story,” Mississippi Valley Historical Review 48 (1961), p. 482.
4. Thomas Jefferson to Thomas Ritchie, Dec. 25, 1820, available at http://www.let.rug.nl/usa/P/tj3/writings/brf/jefl263.htm.
5. Dred Scott v. Sanford, 19 How. 393 (1857).
6. Selections from the Correspondence of Theodore Roosevelt and Henry Cabot Lodge: 1884–1918 (New York: Charles Scribner’s Sons, 1925), p. 519.
7. Charles P. Curtis, Lions Under the Throne (Boston: Houghton Mifflin, 1947), p. 281.
8. Alpheus Thomas Mason, William Howard Taft, Chief Justice (New York: Simon & Schuster, 1965), p. 39.
9. Palko v. Connecticut, 302 U.S. 319 (1937).
10. West Coast Hotel v. Parrish, 300 U.S. 379 (1937).
11. Brown v. Board of Education, 347 U.S. 483 (1954).
12. Reynolds v. Simms, 377 U.S. 533 (1964).
13. Miranda v. Arizona, 384 U.S. 436 (1966).
14. Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court (New York: Oxford University Press, 1985), p. 263.
15. Juan Williams, Thurgood Marshall: American Revolutionary (New York: Times Books, 1998), p. 12.
16. Brown v. Board of Education, 347 U.S. 483 (1954).
17. Keith E. Whittington, “Presidents, Senates, and Failed Supreme Court Nominations,” Supreme Court Review 2006, p. 438.
A HOUSE IS NOT A HOME
The Journey to One First Street
1. Robert P. Reeder, “The First Homes of the Supreme Court of the United States,” Proceedings of the American Philosophical Society 76 (1936), pp. 545–46.
2. Id. at 548.
3. Leon Friedman and Fred L. Israel, The Justices of the United States Supreme Court: Their Lives and Major Opinions, vol. 1 (New York: Chelsea House, 1997), p. 42.
4. Reeder, “The First Homes of the Supreme Court,” p. 550.
5. Friedman and Israel, The Justices, vol. 1, p. 42.
6. Residence Act of 1790, §§ 1, 5, 6, 1 Stat. 130.
7. Reeder
, “The First Homes of the Supreme Court,” p. 552.
8. Id. at 575–76.
9. Id. at 577.
10. Id. at 583.
11. Geoffrey Blodgett, “Cass Gilbert, Architect: Conservative at Bay,” Journal of American History 72 (1985), p. 631.
12. Id. at 618.
13. Arthur Cotton Moore, “A New National Mall for the 21st Century,” Washingtonian, July 2006.
14. Herbert C. Plummer, “A Washington Daybook,” Evening Independent (Massillon, Ohio), Feb. 2, 1929.
15. Cass Gilbert Jr., “The United States Supreme Court Building,” Architecture 72 (1935), p. 301.
16. Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (New York: Penguin, 2007), p. 210.
17. Blodgett, “Cass Gilbert, Architect,” p. 633.
18. Gilbert Jr., “The United States Supreme Court Building,” p. 302.
19. Ibid.
20. Blodgett, “Cass Gilbert, Architect,” p. 632.
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