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VOLUME | STRUCTURES OF GOVERNMENT
HOWARD GILLMAN ° MARK A. GRABER ° KEITH E. WHITTINGTON
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Kahle/Austin Foundation

https://archive.org/details/americanconstitu0001 gill
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Library of Congress Cataloging-in-Publication Data

Gillman, Howard.
American constitutionalism / Howard Gillman, Mark A. Graber, Keith E. Whittington.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-975126-6 (v. 1)
1. Constitutional history—United States. I. Graber, Mark A. II. Whittington, Keith E. Ill. Title.
KF4541.G55 2012
342.7302’'9—dc23 2012001321
Brief Contents

Topical Outline of Volume | xi

Tables, Figures, and Illustrations xv

Preface xix

Part 1 Themes

| Introduction to American Constitutionalism 3

Part 2 Development
D The Colonial Era: Before 1776 31

e The Founding Era: 1776-1788 49

4 The Early National Era: 1789-1828 93

5 The Jacksonian Era: 1829-1860 185

6 Secession, Civil War, and Reconstruction: 1861-1876 249

7 The Republican Era: 1877-1932 319

8 The New Deal and Great Society Era: 1933-1968 417

9 Liberalism Divided: 1969-1980 513

Part 3 Contemporary Issues

10 The Reagan Era: 1981-1993 563

11 The Contemporary Era: 1994—Present 615

Appendices 715

Glossary 743

Index 7/49 ,

Cases 7/71
Contents

Topical Outline of Volume | xi . Powers of the National Government 39

Thomas Whately, The Regulations Lately Made 40
Tables, Figures, and Illustrations xv
Daniel Dulany, Considerations of the Propriety of
Preface xix Imposing Taxes in the British Colonies 42
. Separation of Powers 43
Boston List of Infringements 44

Part 1 Themes The Declaration of Independence 45

Suggested Readings 47
| Introduction to American
Constitutionalism 3 The Founding Era: 1776-1788 49

. What Is a Constitution? 5 . Introduction 49

ll. Constitutional Purposes 7 . Judicial Power and Constitutional Authority 56

A. Judicial Review 56
ll. Constitutional Interpretation and
Robert Yates, “Brutus” 57
Decision Making 10
The Federalist, No. 78 58
lV. Constitutional Authority 18 B. The Absence of a Bill of Rights 61
V. Constitutional Change 22 James Wilson, State House Yard Speech 62
Vi. Constitutional Politics and Law 25 The Federalist, No. 84 63

Suggested Readings 26 . Powers of the National Government 64

Articles of Confederation 65
The Virginia Plan 67
The New Jersey Plan 68
Part 2 Development Article |, Section 8 of the Constitution of the United
States 70
Samuel Adams, Letter to Richard Henry Lee 71
2 The Colonial Era: Before 1776 31
The Federalist, Nos. 1,10, and 23 71
|. Introduction 31 Note: Slavery and the Constitution 75
\|. Judicial Power and Constitutional \V. Federalism 79
Authority 34 A. Representation of State Interests 79
William Blackstone, Commentaries on the Laws of Debate in the Constitutional Convention 80
England 35 Melancton Smith, Speech to the New York
Massachusetts Assembly Memorial 37 Ratification Convention 82
John Dickinson, Letters from a Farmer in V. Separation of Powers 83
Pennsylvania 38 Debate in the Constitutional Convention 84
Contents
The Federalist, Nos. 51,70, and 71 88
“Centinel,’ Letter No.1 90
Suggested Readings 91
The Early National Era: 1789-1828 93
. Introduction 93
Alexander Hamilton, Report on Manufacturers 99
Thomas Jefferson, First inaugural Address 99
. Judicial Power and Constitutional
Authority 101
A. Judicial Review 104
Calderv. Bull 104
Marbury v. Madison 106
B. Judicial Supremacy 112
Thomas Jefferson on Departmentalism 112
C. Federal Review of the States 113
Martin v. Hunter's Lessee 115
. Powers of the National Government 118
A. General Principles 119
Note: Strict Construction 119
B. Necessary and Proper Clause 122
Debate on the Bank of the United States 123
House Debate on the Bank 126
Thomas Jefferson, Opinion on the
Constitutionality of the Bill for
Establishing a National Bank 127
Alexander Hamilton, Opinion as to the
Constitutionality of the Bank of the United
States 128
McCulloch v. Maryland 129
Spencer Roane and John Marshall on McCulloch
v. Maryland 134
Debate on the Military Draft 137
James Monroe, Proposal for a Military Draft 137
Daniel Webster, Speech on the Proposed
Military Draft 138
C. Territorial Acquisition and Governance 139
Senate Debate on the Louisiana Purchase 140
House Debate on the Missouri Compromise 142
D, Powerto Regulate Commerce 145
United States v. The William 146
Josiah Quincy, Speech on Foreign Relations 148
Gibbons v. Ogden 149
E. Taxing and Spending Power 153
House Report on Internal Improvements 154
James Monroe, “Views of the President of the
United States on the Subject of Internal
Improvements” 155
\V. Federalism 156
A. Sovereign |mmunity 158
Chisholm v. Georgia 159
Note: The Passage of the Eleventh
Amendment 162
B. State Authority to Interpret the Constitution 163
Virginia and Kentucky Resolutions of 1798 164
Resolution of the State of Rhode Island and
Providence Plantations to Virginia 166
. Separation of Powers 166
A. General Principles 168
Note: The Power to Act beyond the
Constitution 168
B. Appointment and Removal Powers 170
House Debate on Removal of Executive
Officers 170
C. Executive Privilege 173
House Debate on the Jay Treaty 173
George Washington, Response to the House on the
Jay Treaty 174
James Madison, Response to the President's
Message 1/5
D. Legislative Powers of the President 176
Note: The Veto Power and the Legislative Role of
the President 176
E. Presidential Power to Execute the Law 177
William Wirt, Opinion on the President and
Accounting Officers 178
F. Elections and Political Parties 179
Note: The Constitution and the Election of 1800 179
Suggested Readings 182
The Jacksonian Era: 1829-1860 185
. Introduction 185
“An Introductory Statement of the Democratic
Principle,’ The Democratic Review 190
John Quincy Adams, First Annual Message 192
. Judicial Power and Constitutional Authority 193
A. Judicial Structure and Selection 194
Note: Jacksonians Reorganize the Federal
Judiciary 194
Debate on the Electoral Accountability of the
Judiciary, Ohio Constitutional Convention 196
B. Constitutional Litigation 198
Luther v. Borden 198
. Powers of the National Government 200
A. Necessary and Proper Clause 201

Andrew Jackson, Veto Message Regarding the Bank
of the United States 202
B. Fugitive Slave Clause 206
Salmon Chase, Speech in the Case of the Colored
Woman Matilda 207
Prigg v. Pennsylvania 208
John J. Crittenden, Opinion on the Constitutionality
of the Fugitive Slave Bill 211
C. Territorial Acquisition and Governance 212
Congressional Debate on the Annexation of
Texas 214
Dred Scott v. Sandford 216
Abraham Lincoln, Speech on Slavery in the
Territories 220
. Federalism 221
A. States and the Commerce Clause 222
Willson v. Black Bird Creek Marsh Company
City of New York v. Miln 224
Cooley v. Board of Wardens of the Port of
Philadelphia 226
B. State Authority to Interpret the Constitution 228
John C. Calhoun, “Fort Hill Address” 228
Andrew Jackson, Proclamation on Nullification 230
C. States and Native American Sovereignty 231
Worcester v. Georgia 232
. Separation of Powers 233
A. Presidential Power to Execute the Law 234
The Debate over the Removal of the Deposits 234
Andrew Jackson, Paper on the Removal of the
Deposits 235
Henry Clay, Speech on the Removal of the
Deposits 236
Andrew Jackson, Protest of the Censure
Resolution 238
B. Presidential War and Foreign Affairs Powers 240
James Polk, Second Annual Message 240
House Debate on the Constitutionality of the
Mexican War 241
C. Legislative Powers of the President 243
House Debate on the Veto Power 245
Suggested Readings 247
Secession, Civil War, and
Reconstruction: 1861-1876 249
. Introduction 249
. Constitutional Authority and
Judicial Power 251
A. Judicial Structure and Selection 254
Contents vii
Note: The Republicans Reorganize the
Judiciary 254
B. Judicial Supremacy 256
Lincoln on Departmentalism 256
C. Constitutional Litigation 257
Mississippi v. Johnson 258
Ex parte McCardle 261
. Powers of the National Government 262
A. Necessary and Proper Clause 263
Legal Tender 264
Congressional Debate on the
Legal Tender Bill 266
Hepburn v. Griswold 267
Legal Tender Cases 269
B. Federal Power to Enforce Civil Rights 272
Senate Debate over the Civil Rights Act of 1866 273
223 Civil Rights Act of 1866 276
. Federalism 277
A. Secession 277
South Carolina Ordinance of Secession 277
Jeremiah Black, Opinion on the Power of the
President in Executing the Laws 279
Abraham Lincoln, First Inaugural Address 280
B. Federalism During the Civil War 282
Federalism in the North 282
Note: The Creation of West Virginia 282
Federalism in the South 284
C. The Status of the Southern States during
Reconstruction 285
William T. Sherman, “Memorandum” 286
Andrew Johnson, First Annual Message 286
Henry Winter Davis, “No Peace Before Victory” 288
Charles Sumner, “State Rebellion, State
Suicide” 289
Thaddeus Stevens, Speech on Reconstruction 290
Texas v. White 290
D. Constitutional Amendment and
Ratification 294
Note: The Validity of the Fourteenth
Amendment 294
. Separation of Powers 295
A. General Principles 296
Abraham Lincoln, Fourth of July Message to
Congress 296
B. Martial Law and Habeas Corpus 297
Ex Parte Merryman 299
Edward Bates, Opinion on the Suspension of
the Privilege of the Writ of Habeas Corpus 301
The Habeas Corpus Act of 1863 303
viii Contents
C. Presidential War and Foreign Affairs Powers 306
Abraham Lincoln, “Emancipation
Proclamation” 308
Benjamin Curtis, Executive Power 308
The Prize Cases 311
D. Impeaching and Censuring the President 313
Note: The Impeachment of Andrew Johnson 313
Suggested Readings 316
The Republican Era: 1877-1932 319
. Introduction 319
David J. Brewer, “The Nation's Safeguard” 326
Woodrow Wilson, “The Meaning of Democracy” 327
. Judicial Power and Constitutional Authority 329
A. Judicial Review 332
Slaughter-House Cases 333
Theodore Roosevelt, “A Charter of Democracy” 342
William Howard Taft, Veto of Arizona
Statehood 343
B. Constitutional Litigation 344
Frothingham v. Mellon 345
. Powers of the National Government 346
A. Federal Power to Enforce Civil Rights 347
Note: From the Civil Rights Act to the Civil Rights
Cases 347
Civil Rights Cases 347
Congressional Debate on Lynching 352
B. Power to Regulate Commerce 354
Senate Debate on the Sherman Anti-Trust Act 357
United States v. E.C. Knight Company 359
Note: Federalism, the Sherman Act, and the
Unions 362
Champion v. Ames ["The Lottery Case”] 363
Hammer v. Dagenhart 365
C. Taxing and Spending Power 367
Pollock v. Farmers’ Loan and Trust Company 368
Pollock v. Farmers’ Loan and Trust Company
(Rehearing) 373
Bailey v. Drexel Furniture Company [“The Child
Labor Tax Case”] 376
D. Treaty Power 377
Missouri v. Holland 377
E. Necessary and Proper Clause 379
Selective Draft Law Cases (Arver et al. v. U.S.) 380
F. Territorial Acquisition and Governance 381
Insular Cases 382
. Federalism 389
A. States and the Commerce Clause 393
Wabash, St. Louis and Pacific Railway Company v.
Ilinois 393
B. Police Powers 396
Thomas M. Cooley, Constitutional Limitations 396
Munn v. State of Illinois 397
C. Representation of State Interests 401
George F. Hoar, “Direct Election of Senators” 401
. Separation of Powers 402
A. Appointment and Removal Power 403
Myers v. United States 403
B. Inherent Presidential Power 407
Presidents on Presidential Power 407
Grover Cleveland, “The Independence of the
Executive” 408
Theodore Roosevelt, An Autobiography 408
William Howard Taft, Our Chief Magistrate and
His Powers 409
Woodrow Wilson, Constitutional Government in
the United States 410
C. Nondelegation of Legislative Power 411
J.W. Hampton, Jr. & Co. v. United States 412
D. Elections and Political Parties 413
Note: Crisis of 1876 and the Electoral Count Act of
1887 413
Suggested Readings 414
The New Deal and Great Society Era:
1933-1968 417
_ Introduction 417
Franklin D. Roosevelt, Commonwealth Club
Address 423
Dwight Eisenhower, Letter to Edgar Newton
Eisenhower 424
. Judicial Power and Constitutional
Authority 425
A. Judicial Review 428
United States v. Carolene Products 429
B. Judicial Supremacy 431
Franklin Roosevelt, Undelivered Speech on the
Gold-Clause Cases 431
Franklin Roosevelt, Fireside Chat on Court-Packing
Plan 433
Senate Judiciary Committee Report on President
Roosevelt's Court-Packing Plan 437
The Southern Manifesto 438
Dwight Eisenhower, Address to the Nation on the
Introduction ofTroops in Little Rock 439
Cooper v. Aaron 440
Note: Court-Curbing and the Warren Court 442

C. Constitutional Litigation 442
Note: Declaratory Judgments 443
Flast v. Cohen 444
Baker v. Carr 449
D. Federal Review of the States 456
Note: The Incorporation of the Bill of
Rights 456
Powers of the National Government
A. Power to Regulate Commerce 460
Schechter Poultry Corp. v. United States 461
National Labor Relations Board v. Jones & Laughlin
Steel Corp. 464
Wickard v. Filburn 467
Justice Robert Jackson, Memo on Wickard 470
B. Federal Power to Enforce Civil Rights 471
Congressional Debate over the Civil Rights Act of
1964 472
Heart of Atlanta Motel, Inc. v. United States 474
South Carolina v. Katzenbach 477
C. Taxing and Spending Power 480
United States v. Butler 480
Steward Machine Co. v. Davis 484
. Federalism 488
. Separation of Powers 490
A. General Principles 493
Youngstown Sheet & Tube Co. v. Sawyer 493
B. Appointment and Removal Powers 502
Humphrey’s Executor v. United States 502
C. Nondelegation of Legislative Powers 504
Schechter Poultry Corp. v. United States 505
United States v. Curtiss-Wright Export
Corporation 507
D. Executive Privilege 509
William P. Rogers, Senate Testimony on Executive
Privilege 509
Suggested Readings 512
Liberalism Divided: 1969-1980 513
. Introduction 513
Richard M. Nixon, Speech Accepting the
Republican Presidential Nomination
Jimmy Carter, Inaugural Address 517
. Judicial Power and Constitutional
Authority 518
A. Constitutional Litigation 519
Powell v. McCormack 520
Laird v. Tatum 523
Rehnquist Memo in Laird v. Tatum 527
Contents ix
lll. Powers of the National Government 530
lV. Federalism 530
A. State Immunity from Federal Regulation 532
National League of Cities v. Usery 532
B. Interstate Travel 537
Shapiro v. Thompson 537
V. Separation of Powers 543
458
A. Presidential War and Foreign Affairs Powers 544
Leonard C. Meeker, The Legality of the United
States Participation in the Defense of
Viet-Nam 544
J. William Fulbright, Congress and Foreign
Policy 545
The War Powers Act of 1973 547
Richard Nixon, Veto of the War Powers
Resolution 549
United States v. United States District Court [the
“Keith Case”] 550
B. Executive Privilege 553
United States v. Nixon 553
Suggested Readings 558
Part 3 Contemporary Issues
10 The Reagan Era: 1981-1993 563
|. Introduction 563
Ronald Reagan, First Inaugural Address 566
||. Judicial Power and Constitutional Authority 568
A. Judicial Supremacy 569
Edwin Meese, “The Law of the Constitution” 569
B. Judicial Review 571
William H. Rehnquist, “The Notion of a Living
Constitution” 572
William J. Brennan, “The Constitution of the United
States: Contemporary Ratification” 574
The Nomination of Robert H. Bork to the U.S.
Supreme Court 576
Ronald Reagan, “Address to the Nation” 576
516 Senate Judiciary Committee Hearings on the
Nomination of Robert Bork 578
Note: Modern Court-Curbing 581
I. Powers of the National Government 583
A. General Principles 583
Ronald Reagan, Remarks at the National
Conference of State Legislatures 583
B. Taxing and Spending Power 584
x Contents
South Dakota v. Dole 585
lV. Federalism 587
A. States and the Commerce Clause 588
Garcia v. San Antonio Metropolitan Transit
Authority et al. 589
B. Constitutional Amendment and
Ratification 594
Note: The Validity of the Twenty-Seventh
Amendment 594
. Separation of Powers 596
A. Sharing the Legislative Power 597
Immigration and Naturalization Service v. Chadha 597
B. Presidential Power to Execute the Law 602
Bowsher v. Synar 603
Morrison v. Olson 606
Suggested Readings 613
The Contemporary Era: 1994-Present
. Introduction 615
William J. Clinton, Fourth Annual Message 616
Barack Obama, Inaugural Address 618
. Judicial Power and Constitutional Authority 619
A. Judicial Review 619
City of Boerne v. Flores 621
The Nomination of Samuel Alito to the U.S.
Supreme Court 624
B. Constitutional Litigation 627
Doe v. Bush 627
Massachusetts v. Environmental Protection
Agency 629
C. Judicial Structure and Selection 632
Note: Judicial Appointments and
Confirmations 632
Senate Debate on the “Nuclear Option” 634
III. Powers of the National Government 637
A. Power to Regulate Commerce 640
United States v. Lopez 640
Gonzales v. Raich 647
B. Federal Power to Enforce Civil Rights 652
United States v. Morrison 653
. Federalism 657
A. State Regulation of Federal Elections 658
U.S. Term Limits v. Thornton 658
B. Non-Commandeering 664
Printz v. United States 664
C. Sovereign Immunity 670
Alden v. Maine 670
V. Separation of Powers 676
A. Sharing the Legislative Power 677
Clinton v. City of New York 678
B. Presidential Power to Execute the Law 681
Walter Dellinger, “Presidential Authority to Decline
to Execute Unconstitutional Statutes” 681
Note: The Bush Administration, Presidential Signing
Statements, and the Obligation to Faithfully
Execute the Law 683
C. Presidential War and Foreign Affairs
Powers 686
John Yoo, The President’s Constitutional Authority
to Conduct Military Operations 687
Memoranda on Standards of Conduct of
Interrogation [“Torture Memos”] 691
Jay S. Bybee, Memo to Alberto R. Gonzales,
Counsel to the President 691
John Yoo, Memo to William Haynes II, General
615 Counsel of the Department of Defense 693
Daniel Levin, Memo to James B. Comey, Deputy
Attorney General 696
Caroline D. Krass, Memorandum Opinion on the
Authority to Use Military Force in Libya 696
John Cornyn, Speech on Congressional
Authorization for the Use of Military Force in
Libya 699
D. Martial Law and Habeas Corpus 700
Hamdi v. Rumsfeld 701
E. Executive Privilege 708
Cheney v. United States District Court for the
District of Columbia 708
F. Immunity from Judicial Processes 711
Clinton v. Jones 711
Suggested Readings 714
Appendices
1 Constitution of the United States of
America 715
2 Researching and Reading Government
Documents 729
3 Chronological Table of Presidents, Congress,
and the Supreme Court 739
Glossary 743
Index 749
Cases 77]
Topical Outline of Volume |
|. Introduction
Alexander Hamilton, Report on Manufacturers 99
Thomas Jefferson, First Inaugural Address 99
“An Introductory Statement of the Democratic
Principle,’ The Democratic Review 190
John Quincy Adams, First Annual Message 192
David J. Brewer, “The Nation’s Safeguard” 326
Woodrow Wilson, “The Meaning of Democracy” 327
Franklin D. Roosevelt, Commonwealth Club
Address 423
Dwight Eisenhower, Letter to Edgar Newton
Eisenhower 424
Richard M. Nixon, Speech Accepting the
Republican Presidential Nomination 516
Jimmy Carter, Inaugural Address 517
Ronald Reagan, First Inaugural Address 566
William J. Clinton, Fourth Annual Message 616
Barack Obama, Inaugural Address 618
\|. Judicial Power and Constitutional
Authority
A. General
William Blackstone, Commentaries on the Laws of
England 35
Massachusetts Assembly Memorial 37
John Dickinson, Letters from a Farmer in
Pennsylvania 38
B. Judicial Review
Robert Yates, Brutus 57
The Federalist, No. 78 58
Calder v. Bull 104
Marbury v. Madison 106
Slaughter-House Cases 333
Theodore Roosevelt, “A Charter of Democracy” 342
William Howard Taft, Veto of Arizona
Statehood 343
United States v. Carolene Products 429
William H. Rehnquist, “The Notion of a Living
Constitution” 572
William J. Brennan, “The Constitution of the United
States: Contemporary Ratification” 574
The Nomination of Robert H. Bork to the
Supreme Court 576
Ronald Reagan, “Address to the Nation” 576
Senate Judiciary Committee Hearings on the
Nomination of Robert Bork 578
Note: Modern Court-Curbing 581
City of Boerne v. Flores 621
The Nomination of Samuel Alito to the U.S.
Supreme Court 624
. Judicial Supremacy
Thomas Jefferson on Departmentalism 112
Lincoln on Departmentalism 256
Franklin Roosevelt, Undelivered Speech on the
Gold-Clause Cases 431
Franklin Roosevelt, Fireside Chat on Court-Packing
Plan 433
Senate Judiciary Report on President Roosevelt’s
Court-Packing Plan 437
The Southern Manifesto 438
Dwight Eisenhower, Address to the Nation on the
Introduction of Troops in Little Rock 439
Cooper v. Aaron 440
Note: Court-Curbing and the Warren Court 442
Edwin Meese, “The Law of the Constitution” 569
_ Federal Review of the States
Martin v. Hunter's Lessee 115
Note: The Incorporation of the Bill of Rights 456
. Constitutional Litigation
Luther v. Borden 198
Mississippi v. Johnson 258
Ex parte McCardle 261
Frothington v. Mellon 345
xi
Topical Outline of Volume |
Note: Declaratory Judgments 443
Flast v. Cohen 444
Baker v. Carr 449
Powellv.McCormack 520
Laird v. Tatum 523
Rehnquist Memo in Laird v. Tatum 527
Doe v. Bush 627
Massachusetts v. Environmental Protection
Agency 629
. Judicial Structure and Selection
Note: Jacksonians Reorganize the Federal
Judiciary 194
Debate on the Electoral Accountability of the
Judiciary, Ohio Constitutional Convention 196
Note: The Republicans Reorganize the
Judiciary 254
Note: Judicial Appointments and
Confirmations 632
Senate Debate on the “Nuclear Option” 634
. The Absence of a Bill of Rights
James Wilson, State House Yard Speech 62
The Federalist, No. 84 63
ll. Powers of the National Government
A. General
Thomas Whately, The Regulations Lately Made 40
Daniel Dulany, Considerations of the Propriety of
Imposing Taxes in the British Colonies 42
Articles of Confederation 65
The Virginia Plan 67
The New Jersey Plan 68
Article |, Section 8 of the Constitution of the United
States 70
Samuel Adams, Letter to Richard Henry Lee 71
The Federalist, Nos. 1,10, and 23 71
Note: Slavery and the Constitution 75
Note: Strict Construction 119
Ronald Reagan, Remarks at the National
Conference of State Legislatures 583
. Necessary and Proper Clause
Debate on the Bank of the United States 123
House Debate on the Bank 126
Thomas Jefferson, Opinion on the
Constitutionality of the Bill for Establishing a
National Bank 127
Alexander Hamilton, Opinion as to the
Constitutionality of the Bank of the United
States 128
McCulloch v. Maryland 129
Spencer Roane and John Marshall on McCulloch
v. Maryland 134
Debate on the Military Draft 137
James Monroe, Proposal for a Military
Draft 137
Daniel Webster, Speech on the Proposed
Military Draft 138
Andrew Jackson, Veto Message Regarding the Bank
of the United States 202
Legal Tender 264
Congressional Debate on the Legal Tender
Bill 266
Hepburn v. Griswold 267
Legal Tender Cases 269
Selective Draft Law Cases (Arver et al. v. U.S.) 380
. Power to Regulate Commerce
United States v. The William 146
Josiah Quincy, Speech on Foreign Relations 148
Gibbons v. Ogden 149
Senate Debate on the Sherman Anti-Trust Act 357
United States v. E.C. Knight Company 359
Note: Federalism, the Sherman Act, and the
Unions 362
Champion v. Ames [The Lottery Case”] 363
Hammer v. Dagenhart 365
Schechter Poultry Corp. v. United States 461
National Labor Relations Board v. Jones & Laughlin
Steel Corp. 464
Wickard v. Filburn 467
Robert Jackson, Memo on Wickard 470
United States v. Lopez 640
Gonzales v. Raich 647
. Federal Power to Enforce Civil Rights
Senate Debate over the Civil Rights Act of 1866 273
Civil Rights Act of 1866 276
Note: From the Civil Rights Act to the Civil Rights
Cases 347
Civil Rights Cases 347
Congressional Debate on Lynching 352
Congressional Debate over the Civil Rights Act of
1964 472
Heart of Atlanta Motel, Inc. v. United States 474
South Carolina v. Katzenbach 477
United States v. Morrison 653
. Taxing and Spending Power
House Report on Internal Improvements 154
James Monroe, “Views of the President of the
United States on the Subject of Internal
Improvements” 155
Pollock v. Farmers’ Loan and Trust Company 368
Pollock v. Farmers’ Loan and Trust Company
(Rehearing) 373
 Topical Outline of Volume | xiii

Bailey v. Drexel Furniture Company 376
United States v. Butler 480
Steward Machine Co. v. Davis 484
South Dakota v. Dole 585
F. Territorial Acquisition and Governance
Senate Debate on the Louisiana Purchase 140
House Debate on the Missouri Compromise 142
Congressional Debate on the Annexation of
Texas 214
Dred Scott v. Sandford 216
Abraham Lincoln, Speech on Slavery in the
Territories 220
Insular Cases 382
G. Fugitive Slave Clause
Salmon Chase, Speech in the Case of the Colored
Woman Matilda 207
Prigg v. Pennsylvania 208
John Crittenden, Opinion on the Constitutionality
of the Fugitive Slave Bill 211
H. Treaty Power
Missouri v. Holland 377
. Federalism
A. States and the Commerce Clause
Willson v. Black Bird Creek Marsh Company 223
City of New York v. Miln 224
Cooley v. Board of Wardens of the Port of
Philadelphia 226
Wabash, St. Louis & Pacific Railway Company v.
Melancton Smith, Speech to the New York
Ratification Convention 82
George F. Hoar, “Direct Election of Senators” 401
State Regulation of Federal Elections
U.S. Term Limits v. Thornton 658
State Authority to Interpret the Constitution
Virginia and Kentucky Resolutions of 1798 164
Resolution to the State of Rhode Island and
Providence Plantations to Virginia 166
John C. Calhoun, Fort Hill Address 228
Andrew Jackson, Proclamation on
Nullification 230
. Constitutional Amendment and Ratification
Note: The Validity of the Fourteenth
Amendment 294
Note: The Validity of the Twenty-Seventh
Amendment 594
. Secession
South Carolina Ordinance of Secession 277
Jeremiah Black, Opinion on the Power of the
President in Executing the Laws 279
Abraham Lincoln, First Inaugural Address 280
. The Status of the Southern States during
Reconstruction
William T. Sherman, “Memorandum” 286
Andrew Johnson, First Annual Message 286
Henry Winter Davis, “No Peace Before
Victory” 288

Illinois 393 Charles Sumner, “State Rebellion, State

Garcia v. San Antonio Metropolitan Transit
Authority, et al. 589
B. Police Powers
Thomas M. Cooley, Constitutional
Limitations 396
Munn v. Illinois 397
C. Sovereign Immunity
Chisholm v. Georgia 159
Note: The Passage of the Eleventh
Amendment 162
Alden v. Maine 670
D. State Immunity from Federal Regulation
National League of Cities v. Usery 532
E. Non-Comandeering
Printz v. United States 664
F States and Native American Sovereignty
Worcester v. Georgia 232
G. Interstate Travel
Shapiro v. Thompson 537
H. Representation of State Interests
Debate in the Constitutional Convention
Suicide” 289
Thaddeus Stevens, Speech on Reconstruction 290
Texas v. White 290
. Federalism During the Civil War
Federalism in the North 282
Note: The Creation of West Virginia 282
Federalism in the South 284
V. Separation of Powers
A. General
Boston List of Infringements 44
The Declaration of Independence 45
Debate in the Constitutional Convention 45
The Federalist, Nos. 51,70, and 71 88
Centinel, Letter No.1 90
Note: The Power to Act beyond the
Constitution 168
Abraham Lincoln, Fourth of July Message to
Congress 296
Youngstown Sheet & Tube Co. v. Sawyer 493
_ Presidential War and Foreign Affairs Powers
80 James Polk, Second Annual Message 240
xiv Topical Outline of Volume |
House Debate on the Constitutionality of the
Mexican War 241
Abraham Lincoln, “Emancipation
Proclamation” 308
Benjamin Curtis, Executive Power 308
The Prize Cases 311
Leonard C. Meeker, The Legality of the United States
Participation in the Defense of Viet-Nam 544
J. William Fulbright, Congress and Foreign Policy 545
The War Powers Act of 1973 547
Richard Nixon, Veto of the War Powers
Resolution 549
United States v. United States District Court [the
“Keith Case”] 550
John Yoo, The President's Constitutional Authority
to Conduct Military Operations 687
Memoranda on Standards of Conduct of
Interrogation [“Torture Memos”] 691
Jay S. Bybee, Memo to Alberto R. Gonzales,
Counsel to the President 691
John Yoo, Memo to William Hayes Il,
General Counsel of the Department of
Defense 693
Daniel Levin, Memo to James B. Comey, Deputy
Attorney General 696
Caroline D. Krass, Memorandum on the Authority
to Use Military Force in Libya 696
John Cornyn, Speech on Congressional Authorization
for the Use ofMilitary Force in Libya 699
. Martial Law and Habeas Corpus
Ex parte Merryman 299
Edward Bates, Opinion on the Suspension of the
Privilege of the Writ of Habeas Corpus 301
The Habeas Corpus Act of 1863 303
Hamdi v. Rumsfeld 701
. Appointment and Removal Powers
House Debate on Removal of Executive
Officers 170
Myers v. United States 403
Humphrey's Executor v. United States 502
. Presidential Power to Execute the Law
William Wirt, Opinion on the President and
Accounting Officers 178
The Debate over the Removal of Deposits 234
Andrew Jackson, Paper on the Removal of
Deposits 235
Henry Clay, Speech on the Removal of the
Deposits 236
Andrew Jackson, Protest of the Censure
Resolution 238
Bowsher v. Synar 603
Morrison v. Olson 606
Walter Dellinger, “Presidential Authority
to Decline to Execute Unconstitutional
Statutes” 681
Note: The Bush Administration, Presidential Signing
Statements, and the Obligation to Faithfully
Execute the Law 683
Inherent Presidential Power
Presidents on Presidential Power 407
Grover Cleveland, “The Independence of the
Executive” 408
Theodore Roosevelt, An Autobiography 408
William Howard Taft, Our Chief Magistrate and
His Powers 409
Woodrow Wilson, Constitutional Government in
the United States 410
. Executive Privilege
House Debate on the Jay Treaty 173
George Washington, Response to the House on the
Jay Treaty 174
James Madison, Response to the President's
Message 175
William P. Rogers, Senate Testimony on Executive
Privilege 509
United States v. Nixon 553
Cheney v. United States District Court for the
District of Columbia 708
. Immunity from Judicial Processes
Clinton v. Jones 711
Legislative Powers of the President
Note: The Veto Power and the Legislative Role of
the President 176
House Debate on the Veto Power 245
Nondelegation of Legislative Power
J.W. Hampton, Jr. & Co. v. United States 412
Schechter Poultry Corp. v. United States 505
United States v. Curtiss-Wright Export
Corporation 507
. Sharing the Legislative Power
Immigration and Naturalization Service v.
Chadha 597
Clinton v. City of New York 678
. Impeaching and Censuring the President
Note: The Impeachment of Andrew Johnson 313
. Elections and Political Parties
Note: The Constitution and the Election of
1800 179
Note: Crisis of 1876 and the Electoral Count Act of
1887 413
Tables, Figures, and Illustrations

Figure 1-1 Left-Right Distribution ofJustices, Figure 4-2 Map of Louisiana Purchase and Missouri
Congress, and President in 1974 15 Compromise 139

Figure 1-2 The Supreme Court and Public Opinion, Figure 4-3 Electoral Map of the United States,
1957-1997 21 1800 181

Box 2-1 A Partial Cast of Characters of the Box 5-1 A Partial Cast of Characters of the
Colonial Era 33 Jacksonian Era 191

Table 2-1 Major Issues and Statements of the Table 5-1 Major Issues and Decisions of the
Colonial Era 32 Jacksonian Era 187
Box 3-1 Partial Cast of Characters of the Founding
Table 5-2 Supreme Court Justices and Federal
Era 54
Judicial Circuits, 1842-1860 195
Table 3-1 Ratification of the U.S. Constitution by
Figure 5-1 Partisan Control of the U.S. Government,
State 53
1829-1860 188
Figure 3-1 Territorial Map of the United States,
Figure 5-2 Map of Federal Judicial Circuits,
1789 52
1837 194
Figure 3-2 Slaves as Percentage of State Population,
1790 76 Figure 5-3 Map of the Territorial Acquisitions of the
Jacksonian Era 215
Figure 3-3 Slave-State Representation in Congress,
1790-1860 77 Illustration 5-1 Inauguration of Andrew Jackson 185

Box 4-1 A Partial Cast of Characters of the Early Iustration 5-2 Democratic Party Ballot, 1828 192
National Era 98
Illustration 5-3 General Jackson Slaying the Monster
Table 4-1 Majors Issues and Decisions of the Early Bank 205
National Era 96
Illustration 5-4 King Andrew the First 244
Table 4-2 Some Early Cases of Judicial Review in
Box 6-1 A Partial Cast of Characters of the Civil
American Courts 103
War and Reconstruction 252
Table 4-3 Selection of U.S. Supreme Court Cases
Reviewing Federal Laws under the Table 6-1 Major Issues and Decisions of the Civil
Necessary and Proper Clause 123 War and Reconstruction 250

Figure 4-1 Partisan Control of the U.S. Government, Table 6-2 Reorganization of Federal Judicial
1789-1828 94 Circuits, 1862-1863 255

XV
xvi Tables, Figures, and Illustrations

Table 6-3 Selection of U.S. Supreme Court Cases Table 8-3 Selection of U.S. Supreme Court Cases
Reviewing Presidential Powers as Reviewing State Laws under the
Commander in Chief 307 Interstate Commerce Clause 490

Figure 6-1 Map of Federal Judicial Circuits, 1866 256 Figure 8-1 Partisan Control of the U.S. Government,
1933-1980 418
IHustration 6-1 “Milk Tickets for Babies, In Place of
Milk” 265 Figure 8-2 Agenda Change on the U.S. Supreme
Court, 1933-1988 423
Illustration 6-2 Chief Justice Roger Taney 298
Figure 8-3 Precedents Overruled by the U.S.
Box 7-1 A Partial Cast of Characters of the
Supreme Court, 1790-2004 426
Republican Era 325
Figure 8-4 U.S. Supreme Court Invalidation of State
Table 7-1 Major Issues and Decisions of the
and Federal Laws, 1930-1980 427
Republican Era 321
Figure 8-5 Civilian Employees of the Federal
Table 7-2 Admission of States to the Union,
Government, 1901-1980 460
1863-1890 322
Illustration 8-1 “Three's A Crowd!” 436
Table 7-3 Percentage of Popular Vote in Presidential
Election by Political Party, 1876-1932 323 Illustration 8-2 Justices Felix Frankfurter and Hugo
Black 457
Table 7-4 Selection of U.S. Supreme Court Cases
Reviewing Federal Laws under the Illustration 8-3 Justice Robert H. Jackson 469
Interstate Commerce Clause 355
Illustration 8-4 “Well, We Certainly Botched This Job.
Figure 7-1 Partisan Control of the U.S. Government, What’ll We Stamp It—’Secret’ or ‘Top
1861-1932 320 Secret’?” 510
Figure 7-2 Average Republican Party Vote, Box 9-1 A Partial Cast of Characters of the Era of
1876-1892 324 Liberalism Divided 516
Figure 7-3 Average Republican Party Vote,
Table 9-1 Major Issues and Decisions of the Era of
1896-1928 324
Liberalism Divided 515
Figure 7-4 Supreme Court Review of Federal Laws,
Figure 9-1 Partisan Identification of Southerners and
1850-1950 330
Non-Southerners since 1950 514
Figure 7-5 Supreme Court Invalidation of State and
Figure 9-2 Left-Right Location of Supreme
Federal Laws, 1850-1950 331
Court Relative to Other Branches,
Figure 7-6 Political Experience of the Supreme Court 1950-2002 518
Justices, 1790-2008 332
Illustration 9-1 President Richard Nixon presents William
Illustration 7-1 Constitutional Limits in the Campaign of Rehnquist with his Commission to be
1912 328 Associate Justice 531

Box 8-1 A Partial Cast of Characters of the New Illustration 9-2 “He Says He's from the Phone
Deal-Great Society Era 420 Company” 554

Table 8-1 Major Issues and Decisions of the New Box 10-1 A Partial Cast of Characters of the Reagan
Deal and Great Society Era 419 Era 567

Table 8-2 Federal and State and Local Government Table 10-1 Major Issues and Decisions of the Reagan
Spending, 1902-1980 459 Era 566
 Tables, Figures, and Illustrations xvii

Table 10-2 Timeline of Ratification of Twenty- Figure 11-1 Supreme Court Invalidation of State and
Seventh Amendment 595 Federal Laws, 1970-2004 621

Figure 10-1 Partisan Control of the U.S. Government, Figure 11-2 Percentage of Federal Circuit Court
1981-2008 564 Nominations Not Confirmed,
1945-2008 634
Figure 10-2 Trust in Government Index,
1958-2004 565 Figure 11-3 Federalism References in Party Platforms,
1960-1996 638
Figure 10-3 Court-Curbing Bills Introduced in
Congress, 1877-2007 582 Ilustration 11-1 Judicial Nominations 620

Illustration 10-1 “You Were Expecting Maybe Edward M. IMlustration 11-2 The National Security State 677
Kennedy?” 577
Illustration 11-3 War Powers 687
Illustration 10-2 Jagdish Rai Chadha, the respondent in
INS v. Chadha 602 Figure A-1 Getting to the U.S. Supreme Court 731

Box 11-1 A Partial Cast of Characters of the Figure A-2 Number of Supreme Court Cases with
Contemporary Era 617 Separate Opinions 732

Table 11-1 Major Issues and Decisions of the Appendix 3 Chronological Table of Presidents,
Contemporary Era 616 Congress, and the Supreme Court 739
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Preface
This textbook pioneers a new approach to American
constitutionalism. Our target audience consists of pro-
fessors, students, and readers interested in researching,
teaching, and learning about constitutional politics in
the United States. This subject matter explains four
crucial features of the material that follows.
# We discuss all important debates in American consti-
tutional history.
= We include readings from all prominent participants
in these constitutional debates.
=» We organize these constitutional debates by histori-
cal era.
# Chapter introductions clearly lay out the political
and legal contexts.
Our goal is to familiarize readers with the central con-
stitutional issues that have excited Americans over
the years—and that are still vigorously debated in our
time. We hope to break the habit of equating American
constitutionalism with the decisions of the Supreme
Court of the United States. Constitutionalism in the
United States covers more topics, is more complex, and
is more interesting than one would gather from merely
reading essays by judges in law reports.
American Constitutionalism is directed at all persons
who hope to be sophisticated observers and informed
participants in a constitutional regime, not just the
very few who make arguments before federal judges
or the extraordinary few who become federal judges.
Our text provides readers with the materials they need
to form educated opinions on the fundamental ques-
tions of American constitutionalism.
Constitutional norms pervade all of American poli-
tics, and all of us participate in that constitutional poli-
tics. The very vocabulary that ordinary Americans use
when talking politics reflects the language chosen by
long-dead framers. When we think that government is
treating us unfairly, we complain that we have been
denied “the equal protection of the laws.” We insist or
deny that national health care is a legitimate exercise
of the congressional power under Article I “to regu-
late commerce among the several states.” We debate
whether it is a “necessary and proper” exercise of the
constitutional power “to lay and collect Taxes and pro-
vide for the general welfare of the United States.”
Sophisticated observers and informed participants
need a different introduction to American constitu-
tionalism than lawyers practicing before the Supreme
Court of the United States. Both should be exposed
to such judicial landmarks as McCulloch v. Maryland
(1819), the decision which defined the scope of national
powers, and Brown v. Board of Education (1954), the
decision which declared the laws unconstitutional that
mandated racial segregation in public schools. For this
reason, American Constitutionalism includes generous
selections from the most important cases decided by
the Supreme Court of the United States.
Participants in constitutional politics should be
familiar with important constitutional issues that are
not being litigated, and may never have been litigated,
before the Supreme Court of the United States. They
should know the basic arguments for and against presi-
dential power to initiate military action in foreign coun-
tries, even if that constitutional question has not been
decided by the Supreme Court of the United States.
Sophisticated observers should be aware of the ways
in which Supreme Court rulings may be consequences
of previous constitutional choices made by other con-
stitutional authorities. The Brown decision, for exam-
ple, occurred only after Presidents Roosevelt, Truman,
and Eisenhower packed the federal courts with racial
liberals who believed Jim Crow unconstitutional.
xix
xx Preface
American Constitutionalism seeks to make readers
more sophisticated observers and informed partici-
pants in constitutional politics. If our goal is to under-
stand American constitutionalism, then we should be
open to the full range of the American constitutional
experience. If our goal is to engage the fundamen-
tal questions that have roiled American politics and
understand the dynamics of constitutional develop-
ment, then we must widen our perspective. We must
incorporate the constitutional politics underlying land-
mark Supreme Court decisions, and we must include
landmark constitutional decisions made by elected
officials and state courts. American Constitutionalism
provides these materials.
Constitutional arguments are as much the stuff of
politics as the pork barrel and the log roll. The inter-
play of legal principles, moral values, partisan inter-
ests, and historical development is a central feature of
our constitutional system. Basic constitutional institu-
tions provide normative and procedural frameworks
that allow political debate and decision making to
move forward in ways that both political winners and
losers alike usually consider legitimate. At the same
time, preexisting constitutional commitments confer
advantages on some political movements and partisan
coalitions relative to others.
With the materials that follow we hope to provide
an understanding of how constitutionalism actually
works in the United States. We reject the simple view
that constitutionalism has nothing to do with politics—
and the equally simple view that constitutionalism is
nothing more than a dressed-up version of ordinary
politics. American constitutionalism is a distinctive
form of politics with distinctive goals and modes of
justification. Understanding the interplay between all
the different elements of constitutional law and poli-
tics is a precondition for any realistic assessment of
how American constitutionalism actually works, how
that system of governance should work, and how our
political order might work better.
All Important Constitutional Debates
American Constitutionalism covers the major consti-
tutional controversies that have excited Americans
from the colonial era to the present. Readings range
from protests that the Stamp Act violated the unwrit-
ten English Constitution to the arguments made in the
contemporary controversy over “enhanced” methods
of interrogating suspected terrorists. Along the way,
we include the constitutional debates over the Bill
of Rights, the Louisiana Purchase, the Emancipation
Proclamation, prohibition, women’s suffrage, the New
Deal, and presidential power to order troops into for-
eign countries.
When determining what materials to include, we
look to the impact of the controversy on American con-
stitutional development. We devote space to the con-
stitutional disputes over the annexation of Texas and
the proposed Human Life Amendment. Both debates
were central to the constitutional politics of the time
and provide foundations for contemporary constitu-
tional politics. We spend less time on technical legal
questions primarily of interest to lawyers with a fed-
eral courts practice. We believe that scarce space in a
textbook aimed at providing a deeper understanding
of the workings of our constitutional system is bet-
ter spent covering such issues as the constitutional
debates during the 1920s over federal anti-lynching
laws than the precise details of the state market excep-
tion to the dormant commerce clause. The former tells
us more about the politics and principles of American
constitutionalism than the latter.
All Important Constitutional
Participants
American Constitutionalism examines the contributions
of all Americans to important constitutional debates.
These contributions include the judicial opinions in such
landmark Supreme Court cases as Marbury v. Madison
(1803) and Roe v. Wade (1973). The major contributions to
important constitutional debates also include the argu-
ments lawyers made before the Supreme Court, the judi-
cial opinions and legal arguments in lower federal court
and state court cases, presidential speeches and opinions
of the attorney general, congressional debates and leg-
islative reports, party manifestos, pamphlets produced
by interest groups, and scholarly commentaries. A com-
prehensive education in American constitutionalism
should include Salmon Chase’s argument that Congress
had no constitutional power to pass a fugitive slave act,
the prominent state court decisions interpreting provi-
sions in state bills of rights, President Nixon’s veto of
the War Powers Resolution, the congressional debates
over the ratification of the post-Civil War Amendments,

and the Margold Report outlining the NAACP’s strat-
egy during the 1930s and 1940s for securing a Supreme
Court decision ending “separate but equal.”
We include these materials because we recognize
that American constitutionalism takes shape in the
legislature and the executive branches of government,
as well as in the judiciary. Constitutional provisions
and principles are elaborated within the national gov-
ernment, by state and local officials, and on the streets
and in meeting places throughout the United States.
Constitutional meaning is determined by government
officials, party platforms, campaign speeches, legal
treatises, and newspaper articles.
Our emphasis on all participants is closely related
to our concern with presenting all major constitutional
debates. Consider the constitutional issues raised by
national expansion and presidential war-making pow-
ers. These matters were debated and settled by elected
officials. We would only skim the surface of the consti-
tutional controversies raised during the contemporary
war against terror if we limited materials to Supreme
Court rulings. Even when courts make constitutional
rulings, those rulings are typically preceded and struc-
tured by constitutional politics outside the judiciary.
The Supreme Court in Planned Parenthood v. Casey (1992)
refrained from overruling Roe v. Wade in part because
pro-choice Democrats in 1986 were able to prevent
President Reagan from appointing Robert Bork, a vig-
orous critic of Roe, to the Supreme Court. The Supreme
Court in McCulloch v. Maryland declared that congres-
sional decisions made during the preceding decade
had partly settled questions about the constitutionality
of the national bank. Elected officials often decide the
fate of judicial decisions once they are handed down. If
we pay too much attention to Brown v. Board of Educa-
tion (1954), we will overlook the crucial role the Civil
Rights Act of 1964 played in securing desegregation. If
we concentrate too narrowly on the words of the Court
in Brown, we miss the equally significant and diverse
words of Harry Truman, Dwight Eisenhower, the
Southern Manifesto, and Martin Luther King, Jr.
Historical Organization
American Constitutionalism is organized historically. It
respects the traditional division into two volumes, on
the structures of government and rights and liberties.
However, within each volume, we divide American
Preface
constitutional development into ten relatively distinct
and stable political regimes: Colonial (before 1776),
Founding (1776-1788), Early National (1789-1828),
Jacksonian (1829-1860), Civil War/Reconstruction
(1861-1876), Republican (1877-1932), New Deal/Great
Society (1933-1968), Liberalism Divided (1969-1980),
Reagan (1981-1993), and Contemporary (1994—present).
These ten eras are characterized by important constitu-
tional stabilities that mark that period off from previous
and later eras.
Constitutional questions about secession and slav-
ery were settled by the Civil War. Americans during the
Jacksonian Era bitterly debated the constitutional issues
associated with national territorial expansion, banking,
and internal improvements. Americans after Recon-
struction were far more concerned with national power
to regulate railroads and drinking. New Dealers tempo-
rarily settled the constitutional questions over national
power to regulate the economy that divided Americans
from 1876 to 1932. Many of these issues reemerged in
transmuted and muted form during the contemporary
era. Brown v. Board of Education was hotly contested dur-
ing the New Deal and Great Society. Americans after
1968 celebrated Brown and debated whether that deci-
sion supported or undermined affirmative action.
Approaching American constitutionalism historically
provides a sound framework for understanding crucial
episodes in American constitutional politics. Consider
struggles over constitutional authority. Thomas Jeffer-
son, Andrew Jackson, Abraham Lincoln, and Franklin
Roosevelt maintained that the president, when making
constitutional decisions, should not always be bound by
past Supreme Court decisions. Other presidents have
accepted judicial rulings as authoritative. Our period
divisions enable readers to see patterns in this cycle of
presidential assertion and deference.
The historical approach also enables students to
see vital connections between different constitutional
issues. Debates over slavery ranged from the scope of
the federal power to regulate the interstate slave trade
under the interstate commerce clause to whether the
Sixth Amendment gave alleged fugitive slaves a right
to ajury trial. The movement for racial equality during
the 1950s and 1960s challenged existing constitutional
understandings of the First Amendment, constitu-
tional criminal procedure, cruel and unusual punish-
ment, equal protection, the scope of federal power
over interstate commerce, and state power to regulate
interstate commerce in the absence of federal power.
xxii Preface
We risk losing the vital connections between constitu-
tional provisions when we cabin American constitu-
tionalism into artificial doctrinal categories and treat
them as timeless abstractions.
The Political and Legal Contexts
In all these ways, American Constitutionalism provides
readers with information about the political and legal
contexts in which constitutional controversies arise,
are debated, and are settled. A concise introduction to
each chapter identifies the central features of American
constitutional politics during a particular era. These
crucial elements are both political and legal.
The political elements include the most important par-
tisan coalitions that fought for electoral supremacy, the
main interests that supported those coalitions, the posi-
tions those coalitions took on the most important issues
that divided Americans, and the extent to which one
coalition was more successful than others at gaining con-
trol of the national government. The Dred Scott decision
(1857), which declared that Congress could not ban slav-
ery in American territories, articulated the constitutional
commitments of the Jacksonian Democrats, who usually
controlled the national government from 1828 to 1860.
The legal elements include the most important
schools of constitutional and legal thought in a partic-
ular era. They include the general principles that most
people believed best justified the constitutional order
and were the best methods for interpreting the Consti-
tution. Last, they include the available precedents that
could be invoked to justify future constitutional devel-
opments. New Deal liberals, when justifying extensive
government regulation of the national economy, relied
heavily on notions of a “living constitution” that had
become increasingly prominent in legal thought dur-
ing the early twentieth century.
Pedagogical Framework
The context presented in chapter introductions is part
of a consistent pedagogical framework:
# An opening chapter lays out the nature of Ameri-
can constitutionalism—starting with the five basic
questions beneath constitutional debates. We
believe that this chapter is an essential introduction
for students unfamiliar with the nature of a consti-
tution, constitutional interpretation, constitutional
authority, and constitutional change.
= Each historical chapter is divided into a consistent
set of topical sections.
» After the period introduction, sections within each
subsequent chapter summarize the major issues.
Each section begins with a bulleted list of major
developments, for ease of reference and to facilitate
understanding.
» All readings are prefaced with explanatory head-
notes, and all headnotes to court cases end with
questions. We believe that this more effectively cre-
ates engaged readers and engaged citizens.
® Occasional “Notes” explain particularly vexing
constitutional debates.
# Period illustrations, such as political cartoons, fur-
ther suggest controversies and contexts.
=» Tables throughout the volume summarize key
issues and court cases.
= Allchapters end with suggested readings.
We hope the materials provided here allow read-
ers to think about questions of constitutional inter-
pretation and what the text that we have means, but
also to think about questions of constitutional design
and practice. If resolving fundamental disputes was
merely a matter of consulting a neutral referee, such as
a Supreme Court, whose authority was acknowledged
by all players, then constitutional politics would be a
simple matter of appeals, decisions, and essays in law
books. Because our system does not work in this way,
we have written this book.
For ease of use, the readings in the text are modern-
ized, and we generally use modern terminology to refer to
political and constitutional concepts. Since U.S. Supreme
Court cases can now be easily found, we have generally
cited them only by party names and decision date. Other
court cases are referenced by full legal citation. Footnotes
appearing in case excerpts are from the original source,
unless otherwise indicated.
Supplements
However hard we tried, two volumes alone could not
have space for literally all the participants in all the
debates, without growing so large as to be costly and
intimidating. While we have kept chapters flexible, so
that instructors can skip around, we nonetheless took a
further step: we have made many more readings avail-

able on the Web, as part of the extensive supplements
available with this book.
We also make available correlation guides—to
match our coverage to more traditional sequences. We
wish to make our unusual range of coverage suitable
to any class. Yet we also hope in this way to make the
transition to a new approach easier. We believe that a
historical organization best reflects the lived experience
of the political actors who challenged existing constitu-
tional practices and the constitutional authorities who
determined the validity of those challenges.
Acknowledgments
American Constitutionalism was inspired by and is for
our teachers and our students. Walter Murphy, Sanford
Levinson, Mark Tushnet, Stephen Elkins, Lou Fisher,
Bruce Ackerman, Martin Shapiro, and Rogers Smith
are foremost among our many teachers. From them and
others we learned that American constitutionalism was
about the construction of a political regime and not lim-
ited to close analysis of a few Supreme Court opinions.
Leslie Goldstein, Judith Baer, Gary Jacobsohn, H. W.
Perry, Gordon Silverstein, Paul Frymer, Julie Novkov,
George Lovell, Daniel Carpenter, Cornell Clayton,
Michael McCann, Barry Friedman, Jack Balkin, Randy
Barnett, Douglas Reed, Steve Griffin, Pamela Brand-
wein, Kevin McMahon, Tom Keck, Keith Bybee, Shep
Melnick, Ken Kersch, Ron Kahn, Stephen Skowronek,
and many others have simultaneously been our teach-
ers and students. For the past quarter century we have
participated in a common project devoted to elaborat-
ing new constitutional histories, new constitutional
theories, and new constitutional visions all aimed at
exploring the ways in which the study of American
constitutional politics might differ from the study of
constitutional law. We are particularly grateful for the
opportunities to teach and learn from Kim Scheppele,
Ran Hirschl, Gary Jacobsohn, Leslie Goldstein, and
Thomas Ginsburg, who have consistently reminded
us that we can understand American constitutional-
ism only by understanding constitutionalism outside
of the United States. Over the past decade, we have
welcomed Mariah Zeisberg, Tom Clark, Bradley Hays,
Steve Simon, Beau Breslin, Doug Edlin, Helen Knowles,
David Erdos, Justin Crowe, David Glick, and Emily
Zackin to this constitutionalist fellowship. Each of
these talented scholars has been tolerant of our foibles
Preface xxiii
while diligently pointing out the many mistakes made
in the initial elaboration of this new American consti-
tutionalism. Finally, we should acknowledge the debt
we owe to our students at Princeton University, the
University of Southern California, and the University
of Maryland. They will inherit American constitution-
alism, if not American Constitutionalism. From them, we
have learned that less is often more. We have experi-
enced firsthand the hunger in younger Americans for
ways to better understand and reform the American
constitutional order.
The three of us owe a special debt of gratitude to the
many persons who directly assisted the actual writing
of American Constitutionalism. The list of friends and
colleagues who responded promptly when we asked
for advice about such matters as executive privilege in
the Jacksonian Era or Sunday laws in the 1920s is prob-
ably longer than this volume, if that can be imagined.
Nevertheless, we ought to single out Rogers Smith and
Sandy Levinson for being particularly helpful with
their comments and assistance. A legion of research
assistants worked diligently finding cases, making
tables, correcting typos, and inserting periods. They
include Deborah Beim, David Bridge, Benjamin Bru-
ins, Jonathan Cheng, Colleen Clary, Ina Cox, Danny
Frost, David Glick, Abigail Graber, Ayana Mayberry,
April Morton, David Myers, Herschel Nachlis, Ben-
jamin Newton, David Nohe, Amanda Radke, Jennifer
Ratcliff, Jessica Rebarber, Edward Reilly, Ryan Palmer,
Clara Shaw, Michael Sullivan, Thaila Sundaresan, Jeff
Tessin, and Katie Zuber.
Many friends and colleagues helped us test earlier
iterations of American Constitutionalism. Each of them
provided vital encouragement to us at initial stages of
the project, but also gave us plain hard truths about the
difficult choices we needed to make in order to bring
this book to market. We thank them profusely for their
counsel, as well as their students, whose comments on
earlier editions we did our best to incorporate in the
later volumes.
This project would not exist if not for Jennifer
Carpenter and John Haber, our editors at Oxford
University Press. They combined consistent encour-
agement, meticulous editing, and the patience of Job.
Most important, they kept the faith that what we
had to say mattered if said right and clearly. Other
members of Oxford University Press demonstrated
the same standard of exemplary professionalism and
friendship.
xxiv Preface
We must also thank the many reviewers who closely
examined each chapter to ensure its scholarly integrity
and suitability to their course in constitutional law:
David Gray Adler, Idaho State University; John M.
Aughenbaugh, Virginia Commonwealth University;
Steven P. Brown, Auburn University; Ericka Chris-
tensen, Washington State University; John Feldmeier,
Wright State University; Greg Goelzhauser, Coastal
Carolina University; Hans J. Hacker, Arkansas State
University; Jeffrey D. Hockett, University of Tulsa;
Robert M. Howard, Georgia State University; Thomas
R. Hunter, University of West Georgia; Thomas Keck,
Syracuse University; John C. Kilwein, West Virginia
University; Barbara Kirby, University of North Texas;
Drew Lanier, University of Central Florida; Carolyn N.
Long, Washington State University Vancouver; David
S. Mann, College of Charleston; Banks Miller, Univer-
sity of Texas at Dallas; Lisa L. Miller, Rutgers Univer-
sity; Jason Pierceson, University of Illinois Springfield;
Heather Marie Rice, University of Pittsburgh; Howard
Schweber, University of Wisconsin—Madison; Chris
Shortell, Portland State University; Steven Tauber, Uni-
versity of South Florida; Douglas Telling, Framingham
State University; Michael C. Tolley, Northeastern Uni-
versity; David Upham, University of Dallas; Chad
Westerland, University of Arizona; Darren Wheeler,
Ball State University; Teena Wilhelm, University of
Georgia.
Still others have class tested drafts of this text with
their students: Rogers M. Smith, University of Pennsyl-
vania; Julie Novkov, University at Albany; Alice Hearst,
Smith College; Justin Crowe, Williams College.
Before, during, and after writing this book, we drew
inspiration from our families, who seem appropriately
amused with our fascination for American constitu-
tional development. Mark Graber wishes to extend his
love and appreciation to his mother, Anita Wine Graber,
and his spouse, Julia Bess Frank, and children—Naomi,
Abigail, and Rebecca. Keith Whittington thanks Tracey
and Taylor for their great patience and love. Howard
Gillman thanks Ellen, Arielle, and Danny. The good
news for our families is that, if they are reading this,
the volume is finally done. The bad news is that we
are probably still down in the basement, obsessed by
some other project on which we have already missed
a deadline.
Part 1 Themes
 Chapter 1
Introduction to American Constitutionalism

On May 10, 1776, the Second Continental Congress Consider the controversy over Roe v. Wade (1973), the
passed what John Adams called “the most pee ant Supreme Court decision which held that the Constitu-
resolution that was ever taken in America.”! Th tion protects abortion rights. We might initially see that
dispute as limited to the proper interpretation of such
constitutional provisions as the due process clause of
the Fourteenth Amendment. On closer inspection, the
debate over Roe is rooted in more basic debates over
he nature of constitutionalism. Persons who support
that decision oftenspeak of “a living constitution” that
Americans paraded in joy on the streets of Philadel- incorporates social and political changes. Opponents
phia, eager to get on with the work of self-government. of Roe
R often champion * ‘strict construction,” and insist
Within a year, every colony but Rhode Island and Con-
necticut established a new constitution.
These celebrations highlight the American commit-
ment to constitutionalism. Government in the United ” Five basic questions ie beneath most constitutional
States is constitutional government. A written constitu- disputes.
‘tion, citizens of all political persuasions agree, is funda-
\mental law. Constitutional law is higher than ordinary 1. What is a constitution?
law made bylegislatures or common law announced 2. What purposes should constitutions serve?
by justices. Federal, state, and local authorities exer- 3. How should constitutions be interpreted?
cise power legitimately only when the constitution 4. How should constitutional disputes be resolved?
authorizes their actions and decisions. America’s com- 5. How are constitutions ratified, changed, and

mitment to constitutionalism extends far beyond tra- repudiated?

ditional governing institutions. Student governments, Many Americans think that four of these questions
the P.T.A., such civic organizations as the Knights of have easy answers.
Columbus, and even many chess clubs have constitu-
tions that create, empower, and limit their leaders and 1. The Constitution of the United States consists of the
Pah
members. written text ratified in 1787-88 and amendments
passed according to the procedures set out in Arti-
Five Basic Questions. This shared American com- cle V. That Constitution is the fundamental law of
mitment to constitutionalism masks disputes over the land.
what that commitment to constitutionalism entails. 2. The purpose of that Constitution is to limit govern-
ment and protect basic rights.

1. David McCullough, John Adanis (New York: Simon & Schus-

ter, 2001), 109.
2. Journal of the Second Continental Congress, vol. 5 (1776), 342. = official
Another random document with
no related content on Scribd:
weasel-faced. His mouth was fixed in a perpetual smirk, and I
formed a dislike for him—immediate and intense. I wondered what
the Kids would call him, and a suggestion immediately came to mind:
Uncle Jerk.
"Can't say as I approve of this place at all," said Pettigrew as we
climbed aboard the mono-car. "Matter of fact, I strongly disapprove."
"Well, sir," I said, trying not to gnash my teeth, "I don't quite see how
you can be certain until you've seen it."
"Principle. Matter of principle."
I didn't answer. Hoppy caught my eye and winked.

A rousing cheer came from the Kids down in the courtyard as we

climbed out of the car. Then I heard the brief, plaintive whimper of
Mommy's pitch-pipe and once again the "Welcome Song"
reverberated throughout Fairyland. The Uncles waved down at the
Kids, with the exception of Pettigrew, who fidgeted until the song was
finished. As we descended in the lift, he said: "This place must cost
the taxpayers a tidy sum."
"As a matter of fact, we're almost self-sustaining," I said. "A few tons
of reactor fuel per annum is all we require to—"
"Don't humor him, Harry," said Boswell. "Let him read the Report."
Pettigrew glared, but except for an inaudible mutter he took
Boswell's squelch without comment. I was wondering what
significance might be hidden in this addition of a fourth Uncle to the
Council, but I finally shrugged it off. Earthside politics bored the hell
out of me.
Mommy was waiting to greet us as we stepped out of the elevator
and Uncle Chub gave her a big hug. "How's the First Lady of the
Galaxy?" he said, and she brightened as though it were a
spontaneous compliment she was hearing for the first time instead of
the twentieth.
Then the Kids broke ranks and milled around us, squealing and
laughing and firing questions about Santa Claus. Being new,
Pettigrew received a good deal of attention. "Who are you?" "What's
your Uncle-name?" "Do you live with Santy Claus or with the
fairies?" "How cold is the cold side of Number One Sun?" "Do you
like merry-go-rounds better than rolly-coasters?"
The pelting of this verbal barrage sent him spinning like a crippled
spaceship and I wedged myself through the ring of Kids to rescue
him. "Come on, gang! Break it up!"
Pettigrew gave me a look of wide-eyed terror. "They're insane," he
whispered. "Look at them! They're adults, but they act like—like—"
"Like children," I said. "That's what they are, Mr. Pettigrew. I thought
the other Councilors had explained—"
"They did. But I never thought—well, I mean this is awful!"
I grinned, "You'll get used to it."
"Whole thing is ludicrous. Ludicrous!" He waved an all-
encompassing hand that included the Kids, Fairyland, its basic
concept, and me.
I was getting more disenchanted with this character all the time.
"Now just a minute, you—"
A strong hand closed over my arm and I looked around into the
grinning face of Hoppy. "Let's get the program started, eh?" he said.

The next three hours were a hodge-podge of well-rehearsed chaos.

The Council had to inspect everything so they could return a first-
hand report to the Solar Committee for Sociological Research, and
on the other hand all the Kids had to show off for the Uncles.
The first stop on the agenda was the Arts & Crafts Building where we
exhibited the drawings and clay animals and models and beadwork
and a thousand-and-one other items the Kids had made with their
own hands. From there we adjourned to the school where Ruth had
displayed a few samples of the work of each class.
"We only have one teacher," I explained to Pettigrew, "because each
class meets for just an hour a day. We stagger the classes,
kindergarten through third grade. The Kids spend an average of five
years in each grade, including kindergarten."
"Ridiculous!"
"There's nothing ridiculous about it," I said, patiently, "for the simple
reason that they're not in any hurry."
"Hmph. Well, I am. Let's get on with it."
From the school the procession migrated to the Recreation Hall. We
visited the game room for demonstrations by Checker Champ Mike-
One and Chess Champ Adam-Two, then witnessed exhibitions at the
Bowling Alley, Basketball Court, and the Ice and Roller Rinks. I
explained to Pettigrew that each Kid was Champ of something.
There were enough categories for everybody, and nobody was
allowed to be Champ of more than one thing at a time. Uncle Petty
mumbled something I didn't catch.
We skirted the Midway and took a tour of the Pretty Park. Here at
last was something Pettigrew could accept; he almost smiled as he
saw the huge flower beds raised by the Botany Team. But the
almost-smile disappeared as we explained to him the purpose of the
little cottages nestled among the trees. His eyes bugged and his face
became quite red, and his voice failed him so that he could only
sputter.
"We only retard the mind," I explained, "not the body. Playing House
is just another recreational activity, like riding the merry-go-round or
playing golf. The Kids enjoy it, but they don't make a big thing out of
it. We treat the whole subject quite casually, and frankly."
I'll say this for Pettigrew, he had spunk. He swallowed his moral
indignation, squared his thin shoulders, took a deep breath and
managed to find his voice. But it failed him again on the word
"pregnancy."
"We allow that to occur only rarely," I said. "We're building to a static
population of a hundred and forty. At the current rate of one Dolly per
year, in three more years we'll—"
"One what per year?"
"Dolly." I caught Hoppy's muffled snort behind me and managed to
hold down the size of my grin. "The Kids call it 'making a Dolly.' It's a
rare treat and the girls look forward to it."
When the danger of apoplexy had subsided, Mr. Pettigrew choked,
"This—this is ... monstrous! Monstrous!" And, having found the right
word, he savored it: "Monstrous."
There were too many kids around to pursue the discussion. Little
pitchers, I thought. I was especially concerned about Adam-Two,
who had been lurking as close to the group of Uncles as possible,
soaking in every word like a damp sponge. Twice I whispered to
Ruth to decoy him out of earshot, but she was too busy to keep an
eye on him all the time. She'd no sooner turn her back than he'd
edge up through the crowd again, a look of fierce curiosity on his thin
face.
From the Pretty Park we made our way to the Golf Course, the
Football and Baseball Fields, then the Tennis Courts and Swimming
Pool. Demonstrations were given at each stop, with much shouting
and applause. After the final demonstration by the Diving Champ, we
made a tour of the dormitories. Pettigrew went through a minor
tantrum again when the Dolly Team showed him through the small
Maternity Ward in the girls' dorm.
At last we filed into the Auditorium for the Happy Show. The Kids
who weren't Champs of some game or craft were all in the Happy
Show. We watched, listened, and applauded for the Song Champ,
the Somersault Champ, the Dancing Champ, the Yo-yo Champ, and
many more. The piece-de-resistance was a playlet entitled "The
Uncles' Visit," where three of the boys imitated Uncles Chub, Hoppy,
and Thin. (We hadn't been expecting Uncle Petty, so he wasn't in it.
Probably just was as well, I thought.) It was a riot.
After the show, lollipops were passed out to everybody and it was
Free Time until lunch. Mommy stayed below to keep an eye on
things and I herded the Uncles up to the conference room in the
Tower.
Uncle Chub Boswell rapped the meeting to order. He paid me the
standard compliment about how healthy and happy the Kids looked
and what a fine job Ruth and I were doing here, then asked me to
read the Annual Report.
Before I could get my papers in order, Pettigrew piped, "Mr.
Chairman, I'd like to ask a few pertinent questions."
"All right, Petty. Make it brief."
"Thank you. I should like to ask—er, what was your name again?"
"Barnaby," I said. "Harry Barnaby. Just call me Daddy."
He glared my grin into oblivion. "Mr. Barnaby, I would like you to
explain to me the purpose of this installation."
For some reason, the tone of his voice on the word "installation"
infuriated me. "What the devil are you driving at?" I snapped.
There was a faint suggestion of a sneer on his pasty little face. "I'm
interested in ascertaining, Mr. Barnaby, just how you justify the
continued conduction of this perpetual circus and picnic for the
mentally retarded, at tremendous expense to the taxpayers."
I felt an almost irresistible urge to lean across the conference table
and hit him in the mouth. I turned to Boswell and said, "Chub, I think
you'd better get this pip-squeak out of here."
Boswell glowered at Pettigrew. "Petty, I told you to watch your lip."
"I don't have to take that kind of talk from you, Boswell!"
"Yes you do, as long as I'm Chairman of this committee!"
"Don't be surprised if we have a new Chairman shortly after we
return to Earth," said Mr. Pettigrew smugly.
Boswell grinned at me. "Mr. Pettigrew figgers he's got influence,
Harry. He has a second cousin on the Senate Committee of the
Galactic Council. Figgers he'll have me sacked and make himself
Chairman. He ain't been a bureaucrat long enough to appreciate the
red-tape involved in that kind of caper."
I laughed, and managed to look at Pettigrew without wanting to hit
him. "I don't mind questions," I said, "as long as they're put to me in
a civil manner.
"I'll tell you, Mr. Pettigrew, what the purpose of this 'installation' is.
We're trying to find out how to make people happy. And we think
we've got the answer. Don't let them find out that there's no Santa
Claus, that everybody dies, that it doesn't always pay to be good.
Don't let them know that sex is dirty, childbirth is painful, and not
everybody can be a champion. Don't let them find out what a stupid,
sordid, ugly, ridiculous place the world is. In short, Mr. Pettigrew,
don't let them grow up!"
"Nonsense!"
"Nonsense, Mr. Pettigrew? You saw them. You saw how they live.
You saw their faces and heard them laugh. Judge for yourself."
Pettigrew scowled at me. "Am I to understand, Mr. Barnaby, that you
seriously propose that this quaint little ... er ... experiment be
adopted as a way of life, for everybody?"
"Why not?" I was warming to my subject now, and I leaned across
the table toward him. "Why not? We've had seven thousand years of
civilization. We spent the first six thousand learning more and more
subtle and complex reasons for hating one another and the last
thousand in developing more elaborate and fiendish ways of
destroying one another. And out of our so-called scientific
advancement, accidentally, has come a thing called automation. The
age of the laborer and breadwinner is past. What are we going to do,
Mr. Pettigrew? Let man use his leisure time to discover even more
effective ways of destroying himself ... or let him live in a Fairyland?"
Uncle Petty turned his head slowly, letting his gaze travel around the
room as if he were seeking moral support. He started to say
something, then shook his head.
"Think of it," I went on, "a whole world full of happy kids! And a new
kind of aristocracy—the Daddies and Mommies. They and their
children would be trained to supervise, to keep an eye on things, just
as Ruth and I do here. The Kids could be trained to do what little
maintenance the machines require—"
"You're insane!" Pettigrew exploded. "That's it! You're crazier than
the rest of them out there. You—"
I don't know whether or not I really intended to hit him, or how things
might have turned out if I had. Luckily, Boswell jumped to his feet
and pulled me back as I made a lunge across the table. "Take it
easy, Harry," he said quietly. Then he turned to Pettigrew. "Petty,
we've had enough out of you for today. Open your mouth again and
I'll lock you in the ship till we're ready to leave!"
Pettigrew slid lower in his chair and after a brief mumbling was silent.
I apologized to Boswell for losing my temper. "Forget it, Harry," he
chuckled. "Wanted to hit 'im myself lots of times.... Well, let's have
the Report, eh?"

The bulk of the Annual Report consisted of a lot of dry statistics

about the hydroponics crop, the weight and height and emotional
ratings of the Kids, reports on certain educational and recreational
experiments, and so on. The problem of Adam-Two was the last item
on the agenda, and as I read it they perked up their ears and
stopped yawning.
"... and in light of these developments, the under-signed
recommends that Adam-Two be transported to Earth and given a
normal education so that he may be assimilated into the society."
I stood for a moment, holding the papers in my hand, looking from
one to the other of that quartet of blank, silent faces.
Finally, Boswell cleared his throat. "Harry, let me get this straight.
You think this ... what's his name? Adam-Two. You actually think he's
—ah—growing up?"
I nodded. "There isn't a doubt in my mind, and Ruth agrees."
"And you think we oughta take him back to Earth with us?"
"Sure, I do. I think that's the only solution, don't you?"
Eaker coughed discreetly. "I'm afraid it isn't any solution at all."
"What would we do with him?" Hoppy wanted to know.
"Look," I said, "the kid is a misfit. He doesn't belong here. He
belongs on Earth where he can get an education and maybe a
chance to ... to make something of himself."
Boswell cleared his throat again. "Seems like he'd be a worse misfit
on Earth than he is here, Harry."
"He would not!" I snapped. "He's a sharp kid. He'd adapt himself in
no time."
Eaker spoke up again. "It seems to me we're overlooking an
important point here, gentlemen. Isn't Fairyland supposed to be a
sort of testing ground for a particular sociological theory? It seems to
me we'd be defeating our purpose if we removed this lad just
because he doesn't seem to fit. If the world is to be converted to a
Fairyland, there'll be more Adam-Two's from time to time. What's to
be done with them?"
"Nuts!" I said. "It's not the same problem, and you know it. If the
whole world were like this place, Fairyland would be the only reality
there was. Guys like Adam would have to accept it.... Why don't you
just admit that you don't want to be bothered with this?"
Boswell rapped for order. "Gentlemen, there's no need to waste any
more time with this.... Now Harry, you know we've got no real
jurisdiction in this. We're just advisory. The Kids are all wards of the
Solar State and if you want to appeal for help through official
channels, we'll be glad to initiate a request for you when we get back
to Earth."
I realized now that I might as well have saved my breath. It was the
old bureaucratic buck-pass. For twenty years, the Uncles' visit had
been merely an annual ritual—and they intended to keep it that way.
They had a nice, soft touch and they weren't going to let anything
spoil it. Sure, they'd initiate a report ... and by the time it filtered
through the spiral nebula of red-tape, Adam and I would both have
died of old age.
I gathered up my papers. "Just forget it," I said sourly. "If there's no
further business, let's adjourn for lunch and I'll take you back to the
ship."

At the spaceport we shook hands and Hoppy hung back after the
others had gone up the gangway. He put his hand on my shoulder.
"I'm sorry about this Adam thing, Harry."
"Forget it."
"I know how you feel, and I wish we could help. But you know how it
is...."
"Sure. I know how it is."
"The Administration's all wound up in the Rearmament Program.
Doubling the size of the space fleet. Everybody's edgy, wondering
whether there's going to be war with the Centauri crowd. Hardly
anyone remembers there is such a place as Fairyland. If we go back
and kick up a fuss, no telling what might happen. Most of the
Government budget is earmarked for defense. We might all find
ourselves among the unemployed."
I looked at him for a long time, until his eyes couldn't meet mine any
more. "Hoppy," I said quietly, "how long has it been since they
stopped thinking of Fairyland as a practical possibility?"
He shrugged, still not looking at me. "I don't know, Harry. Twelve,
maybe fifteen years, I suppose. There aren't many Happy Hooligans
around any more—at least they aren't working at it. They're all
getting rich off the defense effort."
"So they're just letting us drift along out here because it's easier than
disbanding the thing and trying to rehabilitate the Kids. That right?"
He nodded. "That's about it."
I took a deep breath, and shook my head. "Why, Hoppy? Why?"
"Oh, hell!" he blurted. "Let's face it, Harry. The whole idea just isn't
practical. It would never work."
"Never work!" I shouted. "It's been working for forty years!"
"Sure, sure—it works here. On an isolated desert planet a billion
miles from Earth, it works fine. But you can't remake the whole world
into a Fairyland, Harry. You just can't do it!"
There was a sinking, sickening feeling in my guts. "Okay, Hoppy.
Okay.... Blast off."
He stood looking at me for a moment, then turned and hurried up the
gangway.
Just as he reached the hatch, two figures emerged suddenly from
the ship. One wore the uniform of a Space Fleet astro-navigator. The
other was Adam-Two.
I ran up the gangway in time to hear the navigator telling Hoppy, "I
found him in the forward chart room."
"Adam!" I yelled. "What are you up to now?"
"I wanted to go along," he said. "I wanted to see if they were really
going to the cold side of Number One Sun."
I grabbed his arm and hustled him down to the mono-car. We slid
clear of the dock and about half a mile away I stopped the car to
watch them blast off.
Adam's eyes were wide with wonderment. "What makes it go?"
"Rocket motors," I said absently. I watched the ship, now just a mote
disappearing in the twilight sky. And I thought, There goes the tag
end of a twenty-year dream.
That was all it had ever been; I knew that now. Just a dream, and a
stupid one at that. I'd deluded myself even more than the Kids.
"What's a rocket motor?"
I looked at Adam. "What? What did you say?"
"I said, what's a rocket motor?"
"Who said anything about rocket motors?"
"You did. I asked you what makes it go and you said, rocket motors."
I frowned. "Forget it. Magic makes it go. Santa Claus magic."
"Okay, Daddy. Sure."
Something about his tone made me look sharply at him. He was
grinning at me; a cynical, adult-type grin. Yesterday it would have
made me furious. Today, for some crazy reason, it made me burst
out laughing. I laughed for quite a long time, and then as suddenly
as it began, it was over. I rumpled his hair and started the car.
"Adam," I said, "take a tip from your Daddy. Stop trying to find out
about things. Hang onto your dreams. Dreams are happy things, and
truth is sometimes pretty ugly...."

CHAPTER IV
That night after Taps I told Ruth about the Council meeting and
about my chat with Hoppy at the ship. She came and sat beside me
and, in the age-old manner of a loyal wife, assured me that
everything was going to be all right.
I stood up and began prowling around the room. "It's not all right.
The plain and simple truth is that we've thrown away twenty years on
this pipe dream. All for nothing!"
"You don't mean that, Harry. Not for nothing."
"The hell I don't! Remember how skeptical we were when we first
heard about this place? Then old Hogarth, Daddy-Two, came to see
us. Remember how we fell for it? We were going to be doing
something important! We were the vanguard of a world revolution—
the greatest thing since the invention of people. A great sociological
advancement.... What a laugh! Fairyland is nothing but a—an orphan
home! And mark my words, sooner or later they're going to come
and close the place down!"
Ruth patted the seat beside her. "Harry, come back and sit down."
I scowled at her. But I sat.
"Harry," she said, "I'm just a woman. I don't know much about world
revolutions or sociology. But I know one thing. No matter what
happens, these twenty years haven't been wasted. We've been
happy, Harry. And so have the Kids."
"I wonder.... Are they happy, Ruth? Do we even know what
happiness is?"
She smiled. "Darling, please don't go abstract on me. I know they're
happy."
"And what about Adam?"
She shook her head. "I suppose he's not. But the percentage is still
pretty high, don't you think? You said Fairyland is nothing more than
an orphan home, and maybe you're right. I guess I never really
thought of it any other way."
I stared at the woman who had been my wife for twenty-three years
as if I'd never seen her before. "You mean you never, not even at the
beginning, believed in the idea of Fairyland?"
"I just didn't think much about it, Harry. I believed in the Kids, that's
all. I figured that our job was to look after them and keep them happy
and well. We've done that job, and I think it's a pretty fine
achievement. I'm proud—for both of us!"
"Thanks," I said dully. "You know, Mommy, I'd almost forgotten...."
"Almost forgotten what, Daddy?"
I laughed shortly. "What it feels like to find out there's no Santa
Claus!"

In the two-week interval between Uncles' Day and Christmas-Two,

the air in Fairyland became super-charged with a kind of hushed
expectancy, and of course everybody was being extra-special good
in the manner of kids everywhere during Santa's Season. The
holiday spirit should have been contagious, but this season I wasn't
having any. My pet theory and private dream had been scuttled, so I
sulked around feeling sorry for myself.
Even Adam-Two was a model of juvenile deportment. Never late for
meals, always washed behind his ears, and—best of all—he stopped
asking embarrassing questions. This sudden change probably would
have made me suspicious if I'd been thinking clearly. As it was, I
merely felt grateful. And of course Mommy was too busy helping the
girls make popcorn and candy to concern herself with such things.
On Christmas Eve, I turned the weather machines to Snow—a
category specially reserved for our two Christmases—and the big,
soft white flakes came drifting lazily down into Fairyland. The lights
were out in all the buildings, the Kids were asleep, and our two
moons were bright and full. Ruth and I stood silently on the front
porch, watching the snow and the moonlight.
"Harry...."
"Mm?"
"Do you still think these twenty years were wasted?"
I slipped an arm around her waist. "It isn't fair to ask me that on a
night like this.... But if they were, I'm glad we wasted them together."
She leaned over and kissed my cheek. "Thank you, Daddy. Merry
Christmas."
"Merry Christmas, Mommy."
Next morning, I donned my pillow-stuffed Santa uniform and itchy
white whiskers and stood with Mommy on the Auditorium stage,
beaming into a bright sea of expectant faces.
"Merry Christmas, everybody. Mer-r-r-y Christmas! Ho-ho-ho-ho-ho!"
"Merry Christmas, Santa Claus!" came the answering chorus.
"Did you all manage to bust up your toys from last Christmas?"
"Ye-e-e-s!"
"Good!" I boomed. "Ho-ho-ho! Can't get new ones unless we bust up
the old ones, you know!"
We all sang "Christmas in Fairyland," and then it was Present
Passing Time. Santa's Space Sled was behind me, chock full of toys.
I reached back and pulled out a package.
"Julia-Three!"
"Here I am, Santy!" She came running down the aisle, a lovely
blonde of about twenty-five, curls flying.
"Have you been a good girl, Julia-Three?"
"Yes, Santy."
"And you wanted a new dolly?"
She nodded emphatically.
"You broke your dolly from last Christmas?"
"Yes, Santy."
"Fine."
She took her present and went skipping off the far side of the stage.
Everything went smoothly for perhaps half an hour and the sled was
about half empty when I snagged a small, flat package marked
"Adam-Two."
He strolled down the aisle and up onto the stage. His eyes were
bright—a little too bright—and there was just the hint of a smile on
his thin face.
"Well, well, Adam-Two! Have you been a good boy?"
"Not very."
I gave him a fierce Santa Claus frown. "Well, now, that's too bad. But
old Santa's glad that you're honest about it.... By the way, you didn't
send old Santy a letter, did you?"
"No. I didn't think I'd get a present because I wasn't good. Anyway, I
didn't know what I wanted." He was staring fixedly at my beard.
"Well, suppose we give you a present anyway, and you try very hard
to be good between now and next Christmas, eh? Ho-ho-ho-ho!"
We'd gotten him a set of chess men. He took the package without
looking at it. "Where's Daddy?" he asked suddenly.
It was so unexpected, so matter-of-fact, that it caught me off
balance. The Kids were always too excited on Christmas morning to
worry about where Daddy might be.
"Well, sir ... ho-ho-ho ... ah, Daddy was kinda sleepy this morning, so
he thought he'd rest up a bit and let Mommy and Santa Claus look
after things—Merry Christmas, Adam-Two! Now, let's see who's next
—"
I turned to pull another package from the sled, and Adam took one
quick step forward, grabbed my beard and yanked hard! It came
away in his hands, and there I stood with my naked Daddy-face
exposed to all the Kids.
The silence was immediate, and deadly.
Then I heard Adam's sudden, sharp intake of breath that was almost
like a sob. I glanced at him for just an instant, but in that instant I
glimpsed the terrible disappointment he must have felt. It was all
there, in his eyes and in his face. He hadn't wanted that beard to
come off. He'd wanted Santa Claus to be real....
He turned away from me and faced the Kids, holding that phony
beard high over his head. "You see!" he shrilled. "It's just like I said!
There really isn't any Santa Claus. He's just—just make-believe, like
the fairies and—and—" His voice broke and he threw the beard
down, jumped off the stage and ran toward the exit.
Ruth called to him. "Adam! Come back here at once!"
"Let him go, Mommy." I looked ruefully out at our stunned and silent
audience. "We've got something more important to do first."
I stepped forward and pulled off my Santa Claus hat. For a long
moment I just stood there, trying to decide what to say. Even if I'd
had my speech rehearsed, I don't think I could have talked around
the lump in my throat.
I couldn't shake the feeling that somehow I had failed them. It was a
feeling that went much deeper than my inability to cope with Adam-
Two and his problem. It was a real, deep-down hollow feeling that
stemmed from my conviction, ever since the Uncles' visit, that the
whole idea of Fairyland was a mistake. I wanted to talk to each and
every one of them, alone. I wanted to tell them, "It's going to be all
right. Mommy and Daddy love you and will always look after you, so
you mustn't worry."
And so I stood there on the stage in my ridiculous, padded Santa
suit, and somehow managed a smile. "Kids," I said, "Daddy's sure
sorry, but you see Santa Claus just couldn't make it today. He—his
spaceship broke down—like our merry-go-round, remember? So
Santa asked Daddy to sort of ... to pretend—"
Down in the front row, nine-year old Molly-Five suddenly began to
sob. Two rows behind her, thirteen-year old Mary-Three took up the
cry. Then across the aisle from Mary, another girl wailed, "I want
Santa Claus!" In the back of the Auditorium, fifteen-year-old Johnny-
Four shouted, "We hate you! You're a mean old Daddy!"
And there in the aisle, pointing an accusing finger at me, was thirty-
eight-year old Mike-One, who brought his Santa-problem to me—
was it only three weeks ago? Mike-One, his arm extended, his chin
trembling, yelling: "You lied to me! You lied, lied, lied!"
It took the better part of an hour to restore a semblance of order.
When the first shock was over and the hysterical, contagious tears
had subsided a little, Mommy and I managed to convince the Kids, at
least most of them, that Santa was alive and well, that he was very
sorry he couldn't make it, but if they'd be good and not fuss about it
they'd all get something extra special next Christmas. Just for good
measure, we doubled the Ice Cream Ration for the next two weeks.
When it was over, I went looking for Adam-Two.
I was boiling mad, and I knew I ought to wait until I cooled off before
having it out with him. But after what he'd pulled today, I didn't dare
trust him out of my sight that long. I knew that my anger was
irrational, but the knowledge didn't help much.
I found him behind the Picnic Grounds, throwing snowballs at the
Great Wall. He was using the force field like a billiard cushion to
bank his shots back in toward the trees.
He saw me coming and waited quietly, idly tossing a snowball from
one hand to the other. For a moment I thought he might be going to
heave it at me. But then he looked down at it, as if it were something
he'd outgrown, and tossed it indifferently aside.
The expression on his face was not one of defiance, or arrogance—
but neither was it that of a boy who was sorry he'd been naughty. I
guess it was a sort of waiting look.
"Well, son," I said, surprised that my anger had suddenly
evaporated, "you sure messed things up, didn't you?"
"I guess I did, all right."
"You're not sorry?"
"I had to find out."
I nodded. "And you figure you did find out, is that it?"
"Yes."
"You wouldn't believe me if I told you that Santa just couldn't get here
—that he asked me to pretend to be him so the Kids wouldn't be
disappointed?"
He shook his head. "No, I wouldn't believe it."
For a moment the anger boiled up in me again and I wanted to grab
him and shake him. I had a crazy notion that if I shook him hard
enough I could shake him back into the mold, and make him once
again just a Kid in Fairyland. Then everything would be all right....
I bent over and made a snowball and heaved it at the Wall, to give
my hands something to do. My throw was too straight and the force
field kicked it back at us. We both ducked as it whizzed over our
heads, then grinned at each other.
"Come on over to Mommy and Daddy's House," I said. "I want to talk
to you."
We trudged along through the three-inch snow, down the path
between the Circus Grounds and the dormitories. The Kids were
drifting back from lunch, and I noticed the noise level was
considerably lower than on any other Christmas I could remember.
They hadn't completely recovered yet, and they probably wouldn't for
a long time. I didn't know what to do about it except to sweat it out.
Ruth greeted us at the door. "Hello, Adam," she said. "Come on in."
"You're not angry with me?"
She shook her head. "We know you couldn't help yourself, don't we,
Daddy?"
"I guess so," I said drily.
We went into the living room and I waved Adam to a seat. I stretched
out in my favorite chair-lounge, feeling suddenly very old and very
tired. Adam sat forward in his chair, watching me with that waiting
look—defiant yet shy, courageous, yet a little afraid, resigned and yet
hopeful....
"Adam," I said at last, "what are you trying to prove? What is it you
want?"
He wet his lips and lowered his eyes for a moment. Then his gaze
met mine without flinching. "It's like I told you once before," he said
quietly. "I just want to know the truth, the real truth about everything!"
I got to my feet and began to slowly pace the floor. I paused in front
of Ruth's chair and looked down at her. She caught my hand, gave it
a squeeze and nodded.
I turned back to Adam. "You won't like it," I said.
"Maybe not. But I gotta know. I just gotta!"
"Not 'gotta'," Ruth corrected automatically. "'Have to'."
"I have to know."
I paced three more laps, still hesitating. I felt like a surgeon, trying to
decide whether or not to operate when it's a toss-up whether the
operation will kill the patient or cure him.
"All right, Adam," I said wearily. "You win. But you have to promise
me something. Promise me that you'll never say anything to the
other Kids about what I'm going to tell you."
Now it was his turn to weigh a decision, and I could feel the battle
going on behind those crystal-clear eyes. His innate honesty, battling
with his insatiable curiosity. He considered for perhaps a full minute,
then he nodded. "Okay. I don't think it's right not to tell Kids the truth
—but I promise."
"Cross your heart?"
"Cross my heart."
I took a deep breath, signalled Ruth to make some coffee, and
began.
"You were right about Santa Claus, Adam. He's just make-believe,
and so are the fairies. Santa Claus was invented by Mommies and
Daddies to represent the spirit of Christmas for kids too little to
understand its real meaning. People on Earth still observe the
holiday, although they've gradually forgotten what it really stands for.
I'll explain that part to you later."
"What's Earth, Daddy?"
"Earth is where everybody lived before there were any spaceships.
It's a big place, and some of it's nice and some of it not so nice. The
people live in houses, something like this one, and the ones in a
house are called families. There's a Mommy and a Daddy for each
family, and their kids live in the house with them."
"Where do the kids come from?"
"From the Mommy. It's the same as what we call 'making a Dolly'."
"Oh."

I talked for six hours, until I was so hoarse my voice was cracking on
every other word. He took it all in stride, injecting a question here
and there, absorbing it all like an unemotional sponge. But when I
began to talk about war, he became a little upset. I explained how it
had begun as individual struggles for survival or supremacy in the
days of the cavemen, how it had evolved along with society into
struggles between families and tribes, then nations, and now—
between planets.
"But why do they kill each other, Daddy? That doesn't prove
anything."
I laughed. "Son, if I could answer that one, I'd be Daddy Number
One of the whole universe!"

We finally packed Adam off to bed in the spare room, after promising
him we'd talk some more the next night. I'd shown him my library and
told him he could come and read any time he liked, though of course
he mustn't take any books out of the house where the Kids might
see them.