A 90 Day Study A History of Our Country’s Judicial System The United States Supreme Court: Landmark Decisions and the Justices Who Made Them February 20, 2017 – June 19, 2017 Featuring Essays by Constituting America’s Guest Constitutional Scholars 2 The United States Supreme Court: Landmark Decisions And The Justices Who Made Them Constitutional Scholar Essayists Steven H. Aden, Senior Counsel, Alliance Defending Freedom James D. Best, Author of Tempest at Dawn, a novel about the 1787 Constitutional Convention; Principled Action, Lessons from the Origins of the American Republic Robert Lowry Clinton, Professor and Chair Emeritus, Department of Political Science, Southern Illinois University Carbondale; Author, Marbury v. Madison; Judicial Review Daniel A. Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association Marshall DeRosa, Professor of Political Science, Florida Atlantic University, Boca Raton, Florida Nick Dranias, President, Compact for America Educational Foundation The Honorable David Eastman, State Representative, Alaska House of Representatives; West Point graduate, former Captain, United States Army; Firefighter Richard Epstein, Inaugural Laurence A. Tisch Professor of Law, New York University School of Law; Peter and Kirstin Bedford Senior Fellow, Hoover Institution Allen C. Guelzo, Henry R. Luce Professor of the Civil War Era, and Professor of History, Gettysburg College; Author, Lincoln’s Emancipation Proclamation: The End of Slavery in America Joseph Knippenberg, Professor of Politics, Oglethorpe University Joerg Knipprath, Professor of Law at Southwestern Law School 3 Andrew Langer, President, Institute for Liberty; host of the LangerCast at RELMNetwork.com William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; Author, Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism Gary Porter, Executive Director, Constitution Leadership Initiative Joe Postell, Professor of Political Science, University of Colorado at Colorado Springs, Colorado David Raney, Professor of History; John Anthony Halter Chair in American History, Constitution, and Second Amendment, Hillsdale College Jeffrey Sikkenga, Professor of Political Science, Ashland University; Adjunct Fellow, John M. Ashbrook Center for Public Affairs; Co-editor, History of American Political Thought Janine Turner, Constituting America Founder & Co-Chair John O. Tyler, Professor of Law and Jurisprudence, Houston Baptist University John Vinzant, Professor of Political Science, Lincoln Land Community College, Springfield, Illinois Richard E. Wagner, Holbert Harris Professor of Economics, George Mason University Kevin Walsh, Professor of Constitutional Law, History, and Politics, Florida Atlantic University Gennie Westbrook, Madison Fellow (2000 Texas); Senior Advisor for Education, Bill of Rights Institute Keith E. Whittington, Professor of Politics, Princeton University 4 Tony Williams, Author of five books including Washington and Hamilton: The Alliance that Forged America J. Eric Wise, Partner, Gibson Dunn & Crutcher LLP in New York City The United States Supreme Court: Landmark Decisions and the Justices Who Made Them Guest Essayist: William Morrisey Introduction: Why Study the Landmark Decisions? What does it mean to “constitute” America? How would anyone do that? And why? And what is “America,” anyway? “America can mean simply the “New World”—the two American continents, “new to the late- Renaissance Europeans who stumbled upon them en route to China, if not to the Asian settlers who’d lived here for centuries. In that sense, hundreds of millions of Americans now live in dozens of countries, under several distinctive forms of government. Given the prominent display of the Stars-and-Stripes flag on the Constituting America website, no one reading these words will imagine “America” to mean that, here. We mean the United States of America, a particular country in America, which declared its independence, its self- government, from an empire ruled from Europe. To assert self-government requires one to establish the terms and conditions by which that government will proceed. By leaving home, a young man or woman declares independence from parents: Very well then, but how will you live, under your newfound self-rule? You say you want to live at liberty, pursuing happiness, but what’s your plan? In declaring their independence from the British Empire, Americans (as they called themselves) asserted unalienable—natural and inherent—rights to those very things. They went on to say that government should be designed to secure the “safety and happiness” of the people it governs. Governments issue commands, often in the form of laws, which they then proceed to execute and to use as criteria for judging disputes that arise under those laws, between citizens, our civil institutions and the commands issued by the persons who hold offices within them rightly aim at protecting the natural rights citizens enjoy by virtue of higher laws—the Laws of Nature and of Nature’s God. If civil institutions fail to do this, it is the unalienable right of the people so misruled to alter or abolish them, on the grounds that a government that misgoverns is by definition no real government at all, having failed to fulfill the rightful aim of all government. 5 The Americans proceeded to do just that. Their first constitution, the Articles of Confederation, proved inadequate to the task of governing. For soldiers and revenues, it depended upon the not- always-good graces of the thirteen state governments. This government couldn’t even settle border disputes between one state and another. These and other controversies threatened the unity of the United States. Without that unity, how would the North American seaboard not become another Europe—a cockpit of war, an incubator of monarchy—and therefore the graveyard of republican self-government? In re-constituting American republicanism, the framers of the 1787 Constitution aimed to secure Americans’ natural rights better than the framers of the Articles had done. Men being men—not angels, as Alexander Hamilton, no angel himself, had occasion to remark—disputes immediately arose. The worst of these, centering on the existence of slavery in the United States, in contravention of the principle of the equal natural right to liberty, issued in civil war. But many disputes found peaceful resolution in the law courts. Here you have more than seventy of the most important such disputes, along with essays on some of the eminent judges who settled them. To understand how Americans constituted America, the first step is to read the United States Constitution itself, in light of the principles of the Declaration of Independence. The Constituting America website already features a clause-by-clause analysis of the constitution, articles written by an array of Constitutional scholars. The next step, the one we invite you to take with us now, is to study the ways in which our Supreme Court justices have interpreted the Constitution as they addressed disputes over its meaning brought to them by their fellow citizens. To dispute the meaning of the Constitution is to dispute the meaning of the American form of government, the American regime. The questions underlying every case that comes before the Supreme Court has always been: What is the American republic? That being so, it is crucial to notice a change in approach seen in these cases, as they built up over time. Chief Justice John Marshall, justly called “The Great Chief Justice,” understood the Court’s function to be “to say what the law is.” He meant that the Court should attempt to understand the meaning of the supreme law of the land according to the language of that document and the intentions of its framers, as discernible in that language. Over time, as American university professors (including professors in the law schools that became basic training for most lawyers only in the last decade of the nineteenth century) drifted away from the natural-rights foundation of the Constitution, a new ‘reading’ of the Constitution emerged. Under the new doctrine, which called itself “Progressivism,” human rights were said to derive not from the laws of Nature and of Nature’s God but from “History”—that is, from the ever- changing opinions and actions of human beings as they move through time. Under the Progressive dispensation, rights are not permanent possessions of human beings as such; they evolve, develop, and (Progressives are great optimists) improve. A constitution, therefore, should no longer be understood as a statement unchanging unless amended. It should “grow” along with the ever-improving consciousness of humanity. This means that the original text of the Constitution as understood by its framers constituted a mere starting-point. To understand American republicanism, not the text but rather the Supreme 6 Court cases themselves make up the bulk of American constitutionalism. Only they track the historical progress of America as it has unfolded; this is what Justice William Brennan, one of the most dedicated of the Court’s Progressives, meant when he described the “living” Constitution. In this view, despite some setbacks along the way, American constitutionalism consists of a long ‘story’ of ever more refined, ever-improving body of case law. Given historical progress, not the intentions of the framers of the Constitution and its amendments