Madison's Music (38 page)

80
. Reconstruction is the euphemism used to describe the federal government's military occupation and attempted political and social makeover of the defeated Southern states.

81
.
Ex parte McCardle
, 74 U.S. 506 (1868).

82
. A direct line runs from the contested Hayes v. Tilden presidential election of 1876 to the turbulent Bush v. Gore presidential election in 2000. In the wake of the congressional deal making over contested electors that changed the outcome of the 1876 presidential election, Congress enacted “safe harbor” legislation providing that state certification of a slate of winning electors could not be challenged in Congress as long as the state certification was received in Washington by a given date. It was the imminence of the safe-harbor date that caused the Supreme Court in
Bush v. Gore
to cut short the recount of Florida's popular vote, permitting the Florida secretary of state to certify electors pledged to George Bush as the winners. If the recount had continued after the expiration of the safe-harbor date, any electors Florida certified would have been subject to politically driven challenges in the House of Representatives.

83
.
Debs v. United States
, 249 U.S. 211 (1919).

84
. Attorney General A. Mitchell Palmer is indelibly associated in American history with the notorious post–World War I Palmer Raids, aimed at arresting and deporting leftist aliens. The raids were in response to a series of terrorist bombings, one of which damaged Palmer's home.

85
.
Schenck v. United States
, 249 U.S. 47 (1919).

86
.
Frohwerk v. United States
, 249 U.S. 204 (1919).

87
.
Abrams v. United States
, 250 U.S. 616 (1919).

88
. Recall that that's what President Lincoln did to Clement Vallandingham, only Vallandingham was deported to the Confederate States of America.

89
.
Minersville School District v. Gobitis
, 310 U.S. 586 (1940).

90
.
West Virginia Board of Education v. Barnette
, 319 U.S. 624 (1943).

91
. Justice Jackson was the last Supreme Court justice who practiced law and served as a federal judge without having graduated from law school. He read for the bar and attended Albany Law School for a year.

92
. 323 U.S. 214 (1944).

93
.
Dennis v. United States
, 341 U.S. 494 ((1951).

94
.
United States v. O'Brien
, 391 U.S. 367 (1968).

95
. Although Justice Douglas apparently accepted the Court's free-speech analysis, he dissented on the grounds that the draft itself raised constitutional problems under the Thirteenth Amendment.

96
.
Buckley v. Valeo
, 424 U.S. 1 (1976).

97
.
Arizona Free Enterprise Clubs' Freedom PAC v. Bennett
, 131 S.Ct. 2806 (2011).

98
.
Holder v. Humanitarian Law Project
, 561 U.S. (2010).

99
.
Ex parte Endo
, 323 U.S. 283 (1944).

10. Madison, the Reluctant Poet

1
. The material in this chapter is drawn from Bernard Schwartz,
The Roots of the Bill of Rights
, vol. 5 (New York: Chelsea House, 1980). I will spare you day-to-day footnoting. As James Thurber (and Casey Stengel) says, “You could look it up.”

INDEX

Abrams, Jacob,
191

Abrams v. United States
,
111

accusation, Fifth Amendment and,
25

ACLU,
50
,
63
,
74
,
139
,
169

     
Flynn in,
192–93

Adams, Abigail,
156

Adams, John.
See also
Marbury v. Madison

     
Article III and,
207

     
censorship by,
6
,
175
,
185

     
press and,
6

Adams, John Quincy,
90

affirmative action,
183

Affordable Care Act,
135–36

     
Roberts, J., on,
172

African Americans.
See
civil rights demonstrations
;
racial minorities
;
slavery

Alien and Sedition Acts,
31

     
Jefferson and,
195

     
Marshall, James, and,
185–86

Alito, Samuel,
136–37

     
religion and,
145

Amar, Akhil,
225–26

Amazon,
9
,
126

American Communist Party,
112
,
192–93
,
233n24

     
Flynn in,
193

     
Supreme Court and,
7
,
111

American Political Science Association,
82–83
,
232n7

Ames, Fisher,
219
,
220

Anti-Federalists,
200
,
201

anti-Semitism,
8

antislavery

     
censorship of,
31
,
226n2

     
First Amendment and,
31

     
newspapers,
6

antitrust laws,
8

appellate courts,
157
,
238n12

appellate jurisdiction, of Supreme Court,
161
,
167
,
169–71

Arab Spring,
32

Areopagitica
(Milton),
125

aristocratic speakers

     
First Amendment and,
99–100
,
105
,
116–18

     
Free Speech Clause and,
143

     
taming,
116–18

Arizona Free Enterprise Club v. Bennett
,
228n7

arrest, Fourth Amendment and,
25
,
26

Article I

     
Committee of Eleven and,
213–14

     
Congress and,
199

     
First Amendment and,
204–5

     
House of Representatives and,
204

     
religion and,
209–10

Article III

     
Adams, John, and,
207

     
circuit judges and,
156–57
,
162
,
169–72

     
Committee of Eleven and,
214–15

     
Supreme Court and,
205–6

Article IV,
199
,
241n44

Article VI,
199

     
federalism and,
205–6

Articles of Confederation,
198
,
202
,
207

aspirations

     
First Amendment and,
10–12
,
109–16

     
Free Speech Clause and,
109–16

assembly.
See
Free Assembly Clause

association.
See
freedom of association

autonomous choice, First Amendment and,
8

autonomy, privacy and,
78

Bache, Benjamin Franklin,
6

bad tendency doctrine,
234n25

     
First Amendment and,
111

Baer, Elizabeth,
189–90

bail, Eighth Amendment and,
27

Baker v. Carr
,
40–42

     
“one person, one vote” principle and,
177

Baldwin, Abraham,
207

Baldwin, Roger,
192–93

banks, Commerce Clause and,
177

Barkett, Rosemary,
50

Bayard, James,
154

Benson, Egbert,
207

     
on Committee of Style,
221

Bethel School District v. Fraser
,
235n38

Bill of Rights.
See also specific amendments

     
Committee of Eleven and,
206–17

     
conscience and,
144

     
criticism of,
185

     
democracy and,
2
,
43

     
Founders and,
1

     
freedom in,
2

     
House of Representatives and,
217–22

     
judicial review and,
149–50

     
Marbury v. Madison
and,
173

     
opposition to,
31–32

     
order of amendments in,
14–15
,
228

     
ratification of,
19

     
reluctance to write,
197–223

     
Senate and,
222–23

     
states and,
30
,
31
,
223

Black, Charles,
225

Black, Hugo,
191
,
192

blanket primary,
21
,
228n7

     
Supreme Court and,
58

Bork, Robert,
33

Boudinot, Elias,
207

Boyd v. United States
,
229n24

brainwashing, in public schools,
9

Brandeis, Louis,
11
,
191

     
Abrams v. United States
and,
111

     
First Amendment and,
8–9
,
99

     
Whitney v. California
and,
111

Brennan, William, Jr.,
6

     
on campaign finance,
65–66

     
democracy and,
40–42

     
draft card burning and,
194

     
equality and,
230–31n17

     
living constitution of,
29
,
177

     
“one person, one vote” principle and,
44
,
74
,
177

Breyer, Steven,
11

     
Bush v. Gore
and,
73

     
egalitarian democracy and,
29

     
on
McCutcheon v. Federal Election Commission
,
74

     
purposivism and,
178

Brooklyn, racial minorities in,
50–51

Brown v. Board of Education
,
179
,
183

Buckley v. Valeo
,
63–68
,
82
,
228n6
,
232n46
,
234n33

     
pure speech and,
177

Burger Court,
45

Burke, Aedanus,
207

Burke, Edmund,
219

Burnside, Ambrose,
187

Burr, Aaron,
158
.
See also
Marbury v. Madison

Burwell v. Hobby Lobby
,
136–37

Bush, George W.,
171

Bush v. Gore
,
41
,
229n16