The Tempting of America
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AMENDMENT XIII [1865].
SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
SECTION 2. Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT XIV [1868].
SECTION 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
SECTION 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
SECTION 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.
SECTION 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 theloss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
AMENDMENT XV [1870].
SECTION 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.
SECTION 2. The Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT XVI [1913].
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 XVII [1913].
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 XVIII [1919].
SECTION 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.
SECTION 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
SECTION 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 XIX [1920].
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 XX [1933].
SECTION 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 3d 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.
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
SECTION 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 XXI [1933].
SECTION 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
SECTION 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.
SECTION 3. This 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 XXII [1951].
SECTION 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 o
f 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.
SECTION 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 XXIII [1961].
SECTION 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.
SECTION 2. The Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT XXIV [1964].
SECTION 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.
SECTION 2. The Congress shall have power to enforce this article by appropriate legislation.
AMENDMENT XXV [1967].
SECTION 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
SECTION 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.
SECTION 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.
SECTION 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 twothirds 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 XXVI [1971].
SECTION 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.
SECTION 2. The Congress shall have power to enforce this article by appropriate legislation.
Notes
WHERE there is reference to only a few passages in a case or other writing, all the pages referred to are placed in a single note. Where there are too many references to make that convenient, each passage has its own note.
INTRODUCTION
1 410 U.S. 113 (1973).
2 H. Belloc, The Great Heresies 10 (Trinity Communic, ed. 1987) (1938).
3 J. Story, Commentaries on the Constitution of the United States vi (Carolina Academic Press 1987) (1833).
4 Id. at 135.
5 See E. Sergeant, “Justice Touched With Fire,” in Mr. Justice Holmes 206-07 (F. Frankfurter ed. 1931); H. Shriver, What Gusto: Stories and Anecdotes About Justice Oliver Wendell Holmes 10 (privately printed 1970).
6 Hohri v. United States, 793 F.2d 304, 313 (D.C. Cir. 1986) (Bork, J., dissenting from denial of reh. en banc), rev’d, 482 U.S. 64 (1987).
7 G. McDowell, “The Politics of Original Intention,” in The Constitution, the Courts, and the Quest for Justice 2 (R. Goldwin & W. Schambra eds. 1989).
8 A. Maclntyre, After Virtue 253 (2d ed. 1984).
9 M. Lerner, “Cleaning Up the Mess,” The Washington Times, June 27, 1988, at D1.
10 H. Belloc, supra note 2, at 12.
I. THE SUPREME COURT AND THE TEMPTATIONS OF POLITICS
1 See, e.g., I. Kristol, Two Cheers for Capitalism 25-31 (1978).
1. CREATION AND FALL
1 3 U.S. (3 Dall.) 386, 387-89 (1798).
2 3 U.S. (3 Dall.) at 398-99 (Iredell, J., concurring).
3 U.S. CONST. art. II, § 4.
4 U.S. CONST. art. III, §1.
5 See L. Tribe, American Constitutional Law 64 n.7 (2d ed. 1988).
6 Letter from Thomas Jefferson to Judge Spencer Roane (Sept. 6,1819), reprinted in 15 The Writings of Thomas Jefferson 212-16 (A. Lipscomb ed. 1903).
7 5 U.S. (1 Cranch) 137, 148 (1803) (emphasis omitted).
8 2 U.S. (2 Dall.) 409 (1792).
9 5 U.S. (1 Cranch) at 176, 177, 179-80 (emphasis in original).
10 10 U.S. (6 Cranch) 87, 134 (1810).
11 U.S. CONST. art. I, § 10.
12 10 U.S. (6 Cranch) at 135, 136.
13 Fletcher v. Peck, 10 U.S. (6 Cranch) at 143, 144 (Johnson, J., concurring).
14 22 U.S. (9 Wheat.) 1 (1824).
15 27 U.S. (2 Pet.) 245 (1829).
16 17 U.S. (4 Wheat.) 316 (1819).
17 32 U.S. (7 Pet.) 243 (1833).
18 D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, at 197 (1985).
19 P. Boller, Presidential Anecdotes 69 (1981), citing W. Sumner, Andrew Jackson 227 n. (1882).
20 60 U.S. (19 How.) 393 (1857).
21 See, e.g., U. Phillips, American Negro Slavery: A Survey of the Supply, Employment and Control of Negro Labor as Determined by the Plantation Regime 359-401 (1918); E. Genovese, The Political Economy of Slavery: Studies in the Economy and Society of the Slave South (1965). This view was also espoused by Charles William Ramsdell. The brilliant and controversial study by Robert William Fogel and Stanley L. Engerman, Time on the Cross: The Economics of American Negro Slavery 89-94 (1974), however, has argued that slavery was economically viable and would have survived.
Speech, Springfield, Illinois, July 17, 1858 reprinted in 2 The Collected Works of Abraham Lincoln, 1848-1858 504, 514 (R. Basler ed. 1953).
23 60 U.S. (19 How.) at 449, 450.
24 J. Ely, Democracy and Distrust 18 (1980) (footnote omitted).
25 In re Winship, 397 U.S. 358, 377, 378-80, 382, 384, 378 (1970) (Black, J., dissenting).
26 D. Currie, supra note 18, at 271 (footnotes omitted).
27
198 U.S. 45 (1905).
28 410 U.S. 113 (1973).
29 The saying is apparently a standard German expression which Lenin might have picked up during his time in Munich or Zurich. See Langenscheidt’s Encyclopaedic Dictionary of the English and German Languages, Based on the Original Work by Prof. Dr. E. Muret and Prof. D. Sanders, Part II: German-English, First Volume A-K 1 (1974).
30 60 U.S. (19 How.) at 564, 620-21 (1856) (Curtis, J., dissenting).
31 Fehrenbacher, “Dred Scott v. Sandford,” in 2 Encyclopedia of the American Constitution 584, 586 (1986).
32 75 U.S. (8 Wall.) 603, 604, 614, 622, 623 (1870) (quotingMcCulloch v. Maryland).
33 U.S. CONST. preamble.
34 U.S. CONST. amend. XIV, § 1.
35 83 U.S. (16 Wall.) 36, 71, 78, 80-81 (1872).
36 83 U.S. (16 Wall.) 83, 96, 97, 110 (1872) (Field, J., dissenting) (emphasis in original).
37 83 U.S. (16 Wall.) 111, 119, 122 (1872) (Bradley, J., dissenting).
38 D. Currie, supra note 18, at 346-47 (footnote omitted).
39 83 U.S. (16 Wall.) at 123.
40 C Fairman, “Reconstruction and Reunion: 1864-88,” History of the Supreme Court of the United States 1270 (1971).
41 25 Wis. 167, 194(1870).
42 20 Mich. 452, 470, 473, 487, 494 (1870).
43 87 U.S. (20 Wall.) 655, 662, 663, 666 (1874).
44 87 U.S. (20 Wall.) 667, 668-69 (1874) (Clifford, J., dissenting) (footnotes omitted).
45 96 U.S. 97, 105, 102, 104 (1877).
46 165 U.S. 578, 591, 589, 590 (1897).
47 198 U.S. 45, 61, 53, 58 (1905) (citation omitted).
48 3 U.S. (3 Dall.) 398—01 (1798).
49 198 U.S. 74,75,76 ( 1905) (Holmes, J., dissenting) (emphasis added).
50 208 U.S. 161 (1908).
51 236 U.S. 1 (1915).
52 261 U.S. 525,553 (1923).