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We the People

“We the People” – A Weekly Column by David Adler

David AdlerDavid Adler, Constitutional scholar and journalist, uses his column “We the People” to promote the public’s understanding of, and appreciation for, the Constitution. As a component of the South Dakota Humanities Council’s mission to encourage civil conversation, the council is providing program funding to make “We the People” available free-of-charge throughout the state via the South Dakota Newspaper Association.

“We the People,” published weekly, covers different aspects of the U.S. Constitution, such as explaining the meaning of provisions, examining Supreme Court decisions, and promoting civic education.

“The Constitution is all-Broadway, all the time, in the life of our nation,” Adler said. “Knowledge of the Constitution, to borrow from James Madison, empowers the citizenry to promote governmental transparency and accountability and to participate effectively in the great debates of our time.”

Adler discusses many topics in his deciphering study of the Constitution. Some of his recent works focus on gender equality, freedom of speech, and whether a president can be subpoenaed.

Justice Black to His Wife: “You Must Be Beyond Reproach”

May 22, 2024; Article #91

Justice Hugo Black loved the Supreme Court as much as anyone who has held a seat on the nation’s High Bench. When Black proposed marriage to his secretary, six years after the death of his first wife, he explained to her that he had been having a love affair with the Court for roughly 20 years. Accordingly, she, like Caesar’s wife, would have to be above reproach. Black wanted assurance from his fiancé that she would be above suspicion and, at all events, that she would be “a one-man woman.” He sought to avoid words and acts that would stain his, or the Court’s, reputation. Justice Black may not have had chocolate, flowers, and a diamond ring in hand, or poetic whisperings in his voice, but his standard was not unreasonable.

The Court’s Commitment to Equal Protection Became Real and Urgent in Brown, 70 Years Ago

May 15, 2024; Article #90

On May 17, 1954—70 years ago this week—the U.S. Supreme Court delivered a landmark ruling in Brown v. Board of Education that marked its historic first full step toward securing the nation’s commitment to equal protection of the law for all Americans. As Justice Stanley Reed, a southerner from Kentucky who made the courageous decision to reject his region’s sentiments on race to form the Court’s unanimous 9-0 ruling, told one of his law clerks, “If it was not the most important decision in the history of the Court, it was very close.”

Justice Fortas’s Cautionary Tale: Ethical Lapses Required Resignation to Protect the Court

May 8, 2024; Article #89

In the aftermath of Justice Abe Fortas’s resignation from the Supreme Court on May 14, 1969, a decision provoked by his own  ethical lapses—political and financial—that were themselves products of an energy and temperament better suited for legal advocacy than the cloistered environment of a monastic order, President Lyndon Johnson lamented the manner in which he had pressured his old friend to accept a nomination to the High Bench. “I made him take the justiceship,” Johnson said. “In that way, I ruined his life.” 

Justice Abe Fortas: Life as a Lawyer’s Lawyer and a Greek Tragedy

May 1, 2024; Article #88

Abe Fortas had always wanted to be a Supreme Court Justice and, for as long as he had known him, his friend and benefactor had wanted to appoint him to the nation’s High Bench.

The Supreme Court at Work: “Sword Dancing,” Opinion Assignment and Writing

April 24, 2024; Article #87

The U.S. Supreme Court writes opinions to explain and justify to the American people the decisions it reaches in cases it hears and resolves in conference. The explanation of the Court’s interpretations of statutes, constitutional provisions, precedents, and, ultimately, its results, is critical to the partnership between the judiciary and the citizenry, one that hinges on the public’s trust in the Court’s rationales and exercise of awesome power over the life of the nation. In a constitutional democracy grounded in reason and persuasion, the High Bench has an obligation to satisfactorily explain its decisions to avoid charges of arbitrariness.

The Court in Conference: Behind Closed Doors, the Justices Hammer Out Decisions

April 17, 2024; Article #86

While oral argument provides the citizenry with a fascinating glimpse of the Supreme Court Justices at work, the heavy lifting is undertaken behind the scenes, far removed from public view, beginning with the High Tribunal’s private–indeed, highly secretive–weekly conferences in which decisions are made that will affect American lives and the life of the nation.

Oral Argument in the Supreme Court: Lawyers Seek to Persuade the Justices

April 10, 2024; Article #85

Oral argument before the U.S. Supreme Court is the most important, fascinating, and visible part of the Justices’ public work on the High Bench. It represents a forum for lawyers to persuade the Court to embrace their perspective on a case and a canvas for a legal artist to produce a memorable masterpiece. In his argument to the Court in 1818, in the landmark case of Dartmouth College v. Woodward, which involved the state’s power to fundamentally change Dartmouth’s charter, Daniel Webster closed with words that have become immortal in the annals of the Court’s history. “It is a small college . . . and yet there are those who love it.” And Webster shed a tear. Contemporaries observed that many in the courtroom were in tears. Chief Justice John Marshall acknowledged that he was moved, and Webster won yet another of his many cases in the Supreme Court.

The Wild West: Justice Field, Sex and Scandal, A Foiled Assassination and Murder

April 3, 2024; Article #84

Historically, U.S. Supreme Court Justices have avoided drama. A bookish group, given to tranquility and docility, the Justices mark their time in the quiet of elegant court chambers, deciding cases and writing opinions. There is, however, an exception to this institutional serenity—the Terry Affair—one that captured the attention of the country and the citizenry’s lurid interest in sex, scandal, and murder.

Justice John Rutledge: A George Washington Favorite and Founding Era Juggernaut

March 27, 2024; Article 83

John Rutledge of South Carolina, a founding era titan who held virtually every important political office and judicial post from the pre-Revolutionary years through the Constitutional Convention, was one of George Washington’s favorites and easily fulfilled the first President’s seven criteria for an appointment to the first U.S. Supreme Court. Had it not been for President Washington’s interest in naming John Jay as the Court’s first Chief Justice, as a means of honoring the key State of New York, whose ratification of the Constitution had proved so decisive, he would have appointed Rutledge, which the South Carolinian and his supporters craved.

Chief Justice Oliver Ellsworth: Impeccable Pedigree for a Supreme Court Appointment

March 20, 2024; Article #82

President George Washington’s nomination in 1796 of Oliver Ellsworth to serve as the third Chief Justice of the U.S. Supreme Court was met with universal approval. Ellsworth boasted a record of experience that few then, and none since, could match. Above all, Ellsworth was a genuine heavyweight in the Constitutional Convention, among a handful of delegates who spoke frequently and authoritatively, and played a key role in shaping the final version of the Constitution that the American people ratified in 1787-1788.

Government by Judiciary: The Four Horsemen, in the Saddle, Exert Influence and Thwart New Deal Programs

March 13, 2024; Article #81

The remarkable influence of the Four Horsemen, as demonstrated by their success in thwarting on constitutional grounds President Franklin D. Roosevelt’s New Deal plans to resuscitate an economy brought to its knees by the Great Depression, reminds us of the capacity, for better or worse, of the Supreme Court to rewrite Alexander Hamilton’s modest description of the judiciary as the “least dangerous branch.” The pitched battle between the Four Horsemen—Willis Van Devanter, James McReynolds, George Sutherland, and Pierce Butler—and President Roosevelt, on the question of whether the Constitution empowered extensive governmental intervention to regulate a free market economy in a way that surpassed previous efforts, represented a historic contest for authority to shape and control the course of American governance. The spectre of “government by judiciary” had been brought center stage.

Defending the Old Constitutional Regime: The Four Horsemen Reject Government as a Relief Society

March 5, 2024; Article #80

The adage that the Supreme Court follows the election returns certainly did not apply to the Four Horsemen—Willis Van Devanter, George Sutherland, James McReynolds, and Pierce Butler. President Franklin D. Roosevelt had earned landslide victories in the 1932 and 1936 presidential elections, but that was not discernible in the behavior of the four conservative Justices who were in control of the Supreme Court. As he faced the most dire economic circumstances in United States history and the grim challenge of dispensing hope to a nation caught in the clutches of despair, Roosevelt intended, through dramatic policies and programs, to lift the country from the depths of the Great Depression by taking the federal government into the relief business. But not if the Four Horsemen had anything to say about it.

The Four Horsemen: A Conservative Supreme Court Bloc with Outsized Influence that Resonates in Our Time

February 28, 2024; Article #79

The Four Horsemen of Supreme Court—not Biblical—lore represented one of the most important blocs of Justices in the history of our constitutional tradition. Their intractable opposition to New Deal legislation and reforms in the 1930s, in favor of an old-style conservatism that embraced laissez-faire economics and the view that the Constitution was an unchanging document in a universe governed by fixed and inexorable laws, marked the Four Horsemen, as contemporary newspapers characterized them, as the most polarizing judicial alliance in the Court’s history.  To the citizenry, they were either heroes engaged in a great mission to save the Constitution and the American way of life from the likes of President Franklin D. Roosevelt and his fellow liberals, or villains whose antiquated methods of interpretation and rigid conceptions of the roles and powers of government threatened to make permanent the national misery inflicted by the Great Depression.

Long Reach of the Pardon Power: The Framers, Lincoln and Biden

February 21, 2024; Article #78

The intriguing President’s Day news that President Abraham Lincoln granted a pardon 160 years ago to President Joe Biden’s great-great-grandfather revived Americans’ fascination with the purpose, concerns, scope and history of this sweeping executive power.

The Supreme Court at the Beginning: What to Wear?

February 14, 2024; Article #77

The photos and images of U.S. Supreme Court Justices portraying earnest men and women wrestling with momentous legal issues and controversies, the resolution of which will shape American society, politics, and the constitutional landscape, fairly capture the serious side of those seated on the nation’s High Tribunal. But that’s not the Justices’ only side. There is another.

Freedom of the Press: The Essential Foundation of Democracy

February 7, 2024; Article #76

When the U.S. Supreme Court, in Richmond Newspapers v. Virginia (1980), in the words of Justice John Paul Stevens, “squarely held that the acquisition of newsworthy matter is entitled to constitutional protection,” it was protecting under the First Amendment’s Free Press Clause the essential foundation of our democracy.

“Landmark Ruling Gives Press and Public Access to Criminal Trials”

January 31, 2024; Article #75

The First Amendment’s Free Press Clause, which Thomas Jefferson declared indispensable to republicanism, has long been regarded as the “people’s right to know.” Without knowledge of governmental programs, policies and practices, the people would have little ability to hold government accountable. The press, as Jefferson and the founders recognized, could provide the crucial informing function that would make self-government possible.

“Justice Jackson at Nuremberg: A Historic but Controversial Role

January 24, 2024; Article #74

Justice Robert H. Jackson’s departure for Europe in September of 1945 to serve as chief prosecutor for the United States at the historic Nuremberg trials of Nazi war criminals annoyed some of his fellow Justices and heightened the internal tensions that gripped the Supreme Court. Jackson’s acceptance of an appointment by President Harry Truman to lead the prosecution affected the workload and decision-making of the Court and renewed a lingering debate on the wisdom and propriety of tasking Justices with non-judicial responsibilities.

“Blood Feud” Inside the Supreme Court on Question of Recusal

January 17, 2024; Article #73

Every now and again, the public displays an intense interest in the question of whether Supreme Court Justices ought to recuse themselves from a particular case because it appears that they have a conflict of interest that might prevent them from delivering an impartial ruling.

Justice Robert H. Jackson: Groomed for the Supreme Court

January 10, 2024; Article #72

Few nominees to the U.S. Supreme Court have been as well prepared—let us say, groomed—for a seat on the nation’s High Tribunal as Robert H. Jackson, who was appointed in 1941 by President Franklin D. Roosevelt.

Trump Claims Impeachment Clause Grants Him Immunity

January 3, 2024; Article #71

Former President Donald Trump’s legal team has filed briefs with the D.C. Court of Appeals, which will hear oral argument in the federal insurrection case on January 9, claiming to find presidential immunity from criminal prosecution in the Impeachment Clause of the Constitution.  Trump’s lawyers have advanced two arguments, each of which tortures the language of the Impeachment Clause, distorts the history and purposes surrounding the provision, and draws baseless inferences from the Framers’ careful steps to construct a power to protect the nation from presidential abuse of power and threats to republican principles and values.

“Section Three and Constitutional Democracy?”

December 27, 2023; Article #70

Critics of the Colorado Supreme Court’s ruling that former President Donald Trump, under the express terms of Section 3 of the 14th Amendment, is ineligible to appear on the ballot as a Republican presidential candidate, assert that the Disqualification Clause is undemocratic and, therefore, it should not be invoked to deprive voters of the right to decide who their next president will be.

“A Law Court Will Affirm Colorado’s Ruling on Trump”

December 20, 2023; Article #69

In his landmark opinion for the U.S. Supreme Court in Marbury v. Madison (1803), Chief Justice John Marshall defined the over-arching responsibility of the High Bench: “It is emphatically the province and duty of the judiciary to say what the law is.” Marshall, the greatest name in our constitutional jurisprudence, observed that the Supreme Court is a law court, not a political court, a crucial distinction for a nation founded on the rationale that ours is a government of laws, not men.

“Mr. Smith Goes to the Supreme Court to Save the Rule of Law”

December 13, 2023; Article #68

Jack Smith, the special counsel prosecuting former President Donald Trump for his efforts to illegally overturn the 2020 election, made a bold and strategically wise move in a rare request to the U.S. Supreme Court to rule “expeditiously” on Trump’s claim of absolute immunity from criminal prosecution. Trump’s assertion that he is above the law represents a profound threat to the rule of law.

Justice O’Connor, A Personal Reminiscence: “You Mean Sheroes?”

December 6, 2023; Article #67

I had the great privilege and pleasure, twice, to interview Justice Sandra Day O’Connor on stage at a conference on women and leadership that I organized and hosted.

“James Iredell: Not Hamilton, but Well-Qualified for Supreme Court”

November 29, 2023; Article #66

Unlike Alexander Hamilton, a more famous Founding Father who wrote extensively about the proposed Constitution and championed its ratification, and who became a 21st Century cultural icon on Broadway 200 years after his death, James Iredell had to settle for a mere appointment to the first U.S. Supreme Court.

“Justice Douglas Went East, But Appointed to Court as a Westerner”

November 21, 2023; Article #65

President Franklin D. Roosevelt wanted to nominate William O. Douglas to the U.S. Supreme Court to fill the vacancy left by the retirement of Justice Louis Brandeis in 1939, but there was a problem, a geographical problem.

“Justice William O. Douglas: Horatio Alger of the Supreme Court”

November 15, 2023; Article #64

William O. Douglas, the longest serving Supreme Court Justice in American history (1939-1975), whose outsized life on and off the bench required two autobiographical volumes and inspired both devoted followers and passionate detractors, was at the center of the Court’s most important 20th Century rulings. President Franklin D. Roosevelt might have expected as much when he nominated Douglas, just 40 years old, to replace Justice Louis Brandeis, who was forced by a heart attack to leave the Judicial Palace. At the time of his appointment, Douglas had been an eminent law professor at Columbia and Yale and was at the forefront of important national reforms in the world of law, business, regulation, and the Security and Exchange Commission, where he served as its third chairman.

Justice Van Devanter of Wyoming: A “Mainstay” on the Court

November 8, 2023; Article #63

The odds were against Willis Van Devanter ever winning an appointment to the Supreme Court. Widespread talk that he suffered from “pen paralysis,” an affliction that subverted his production, made President William Howard Taft “hesitant” to nominate the Wyoming transplant to fill a vacancy on the nation’s High Court.

Hughes Returns and Preserves the Court Amidst a Great Storm

November 1, 2023; Article #62

When President Herbert Hoover in 1930 nominated Charles Evans Hughes to be Chief Justice of the Supreme Court, an unprecedented second tour of duty on the nation’s High Tribunal, he didn’t find it necessary to offer much in the way of justification because, he said, “it was the obvious appointment.” Hughes’s forceful, forbidding Jovian aura commanded attention and respect. Justice Robert H. Jackson, a historic figure in American law, and comfortable in the company of great men, once said of Hughes: “He looked like God and talked like God.”

Charles Evans Hughes: Appointed Twice to the Supreme Court

October 25, 2023; Article #61

Charles Evans Hughes, one of the great names in America’s judicial history, remains the only person twice appointed to the U.S. Supreme Court. His remarkable resume—lawyer, governor, Secretary of State, presidential candidate, Associate Justice, Chief Justice, judge on the Permanent Court of International Justice—reflected a record of contributions to American government and law rivaled by few in our nation’s history.

Taft: The Court Should Preserve Framers’ Governmental Structure

October 18, 2023; Article #60

The U.S. Supreme Court is a law court, of course, but it is primarily a political institution that guides the destiny of the nation. Its rulings mark the boundaries of power between the branches of the federal government and those between the federal and state governments, as well as determining the scope of liberties enjoyed by the citizenry.

Chief Justice Taft: Presidency Okay, Supreme Court Heavenly

October 9, 2023; Article #59

William Howard Taft, the only man to serve as President of the United States and Chief Justice of the Supreme Court, once observed that the Court was his idea of what Heaven must be like. This prompted Justice Felix Frankfurter to declare that “he had a very different notion of heaven than any I know anything about.”

“Brandeis: Free Speech Critical to Preservation of Democracy”

October 4, 2023; Article #58

In response to previous columns about the appointment, importance, and influence of Justice Louis Brandeis, an enthusiastic reader has asked a most welcome question about the jurist’s contributions to the Supreme Court’s development of the law governing freedom of speech.

“Brandeis: A Great Justice and the Right to Be Let Alone”

September 27, 2023; Article #57

Louis Brandeis, known by the nation at the time of his appointment to the U.S. Supreme Court as “The People’s Lawyer” and years later affectionately nicknamed “Old Isaiah” by President Franklin D. Roosevelt, was one of the greatest jurists and most innovative legal minds in our country’s history.

Justice Louis D. Brandeis: “The People’s Attorney”

September 19, 2023; Article #56

By the time President Woodrow Wilson nominated him for a seat on the U.S. Supreme Court in 1916, Louis Brandeis, the nation’s first Jewish Justice, had forged a reputation as a brilliant, innovative, and influential attorney. He was an advocate to be feared. Judges at all levels acknowledged how much they learned from him. The Supreme Court embraced his novel legal arguments and approach to the law—“the Brandeis Brief”—which ushered in an era of “sociological jurisprudence” and enjoys enduring influence. On top of this, he was known as “the People’s Attorney.”

“Justice Holmes Influences Business of Judging”

September 13, 2023; Article #55

The emergence of Justice Oliver Wendell Holmes as a dominant influence in the work of the Supreme Court began in 1905, just three years after his appointment to the High Bench, in a dissenting opinion in Lochner v. New York that many scholars hail as the most famous dissent ever written.

“Justice Holmes: A Legend Before Joining the Supreme Court”

September 6, 2023; Article #54

Justice Oliver Wendell Holmes, Jr. once said, “If American law were to be represented by a single figure, skeptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall.” It has been justly observed that if American law were to be represented by a second figure, it would be Holmes himself, since he was more influential in shaping the agenda for the 20th Century Supreme Court than any other legal figure.

Trump Use of Scottsboro Boys Case Inapt and Reckless

August 30, 2023; Article #53

Former President Donald Trump’s invocation of the landmark Supreme Court ruling in the Scottsboro Boys cases (1931), as justification for delaying his trial on charges related to the subversion of the 2020 federal election, was sharply rejected by the federal court as inapt and by a retired state judge as “stunningly stupid.”

“Justice Joseph Story: Most Scholarly of Justices”

August 23, 2023; Article #52

Justice Joseph Story stands as a giant among those who have held a seat on the Supreme Court. Story was one of the greatest legal figures in the 19th Century, in the upper echelon of everyone’s list of outstanding judges in American history and the most scholarly of scholarly Justices.

Chief Justice Marshall: Unpretentious, Modest and Humble

August 16, 2023; Article #51

Those Americans in the early years of the republic who idolized the elegant, regal, and graceful bearing of English judges could be forgiven their initial doubts about the potential of Chief Justice John Marshall to lead the Supreme Court. Although tall and erect, he was ungainly, awkward, and slovenly. His hair was unkempt and his clothes frequently disheveled, especially his knee buckles, which were dangling. And there was the mud on his boots. His appearance was not indicative of a man impressed with the high station that he had achieved.

“John Marshall: The Great Chief Justice Transforms the Court”

August 9, 2023; Article #50

Two centuries after his service to the United States as Chief Justice of the Supreme Court, virtually no one doubts John Marshall’s preeminent status in America law.  Justice Oliver Wendell Holmes, widely regarded as deserving of a seat on a judicial Mount Olympus, observed, “If American law were to be represented by a single figure, skeptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall.”

Justice James Wilson: Leading Constitutional Architect

August 1, 2023; Article #49

It was altogether fitting that James Wilson, second in importance only to James Madison as an architect of the Constitution, would be nominated by President George Washington to the original Supreme Court. From this position, Justice James Wilson could defend the Constitution, which he had done so much to shape and define.

John Jay: First Chief Justice, Diplomat, Founding Era Giant

July 26, 2023; Article #48

When the newly elected President George Washington turned his attention to the historic opportunity of nominating citizens to fill seats on the first U.S. Supreme Court in 1789, he knew exactly whom he wanted to name the nation’s first Chief Justice: John Jay.

Judicial Profiles to Better Understand the Supreme Court

July 19, 2023; Article #47

We citizens know a lot about our presidents—their background, philosophy, and character—and sometimes more than we care to know. The same is true of our congressional representatives. By comparison, we know relatively little about our Supreme Court Justices. This needs to change.

“Constitution Does Not Shield Presidents from Defamation Suits”

July 12, 2023; Article #46

The Justice Department’s announcement this week that the Constitution does not shield presidents from civil lawsuits stemming from a president’s defamatory remarks represents two important victories—one for constitutionally limited government and the other for individuals who could be destroyed by the words of the nation’s chief executive.

“Declaration of Independence: Advancing American Ideals”

July 5, 2023; Article #45

The Declaration of Independence—its words, elements, and ramifications—remains profoundly relevant in America. As the founding document of the world’s longest running democracy and the ultimate expression of the ideas, values, and principles that culminated in the American Revolution, it certainly deserves a special place in our national consciousness, debates, policies, and laws.  

“Court Rejects Radical Legislative Theory, Defends Democracy”

June 28, 2023; Article #44

It is difficult to overestimate the importance of the U.S. Supreme Court’s repudiation of the “independent state legislature” theory in Harper v. Moore. The widely admired conservative judge, J. Michael Luttig, called it “the most important case, since the founding, for American democracy.”

“Trump Trial Challenges American Democracy and Rule of Law”

June 21, 2023; Article #43

A reader’s question has captured the history-making nature of the forthcoming trial of former President Donald Trump: “What are the implications of the trial for the Constitution, presidential power and the rule of law?”

“Trump Trial Tests the Framers’ Constitution and the Rule of Law”

June 13, 2023; Article #42

“What are the implications of the trial of Donald Trump for the Constitution, presidential power and the rule of law?” a reader asks, adding another important question: “Did the Framers of the Constitution adequately limit presidential power?”

Why Congress May Impose Ethics Code on Supreme Court Justices

June 7, 2023; Article #41

Rising calls for Congress to enact new ethical standards for the Supreme Court, sparked by recent revelations that Justice Clarence Thomas failed to disclose financial transactions, have generated a debate on whether the legislative branch possesses constitutional authority to impose a code of conduct on the judiciary.

“Reader Asks: How Do We Rein in Supreme Court Justices?”

May 31, 2023; Article #40

A reader recently wrote to ask a question on the minds of many Americans: “If the courts check the other branches of government, who checks the courts?” The reader continued: “Since the Supreme Court enforces constitutional limits on the presidency and Congress through the exercise of judicial review, who can restrain the Court, particularly at a time when public opinion registers strong opposition to the Court’s interpretation of the Constitution?”

“Is Posting of Ten Commandments in Schools Constitutional?”

May 25, 2023; Article #39

The continued revival of interest among state legislatures in posting the Ten Commandments in public schools may present to the U.S. Supreme Court an opportunity to reverse yet another decades-old, landmark precedent, this time one that prohibits such displays on grounds that they promote religion in violation of the First Amendment’s Establishment Clause.

“Presidential Power, the 14th Amendment and the Public Debt”

May 17, 2023; Article #38

The debt ceiling standoff between President Joe Biden and House Republicans has illuminated the Public Debt Clause of the 14th Amendment, one of the most obscure provisions in the Constitution and one seldom discussed since the Civil War. Its invocation may be the key to avoiding economic catastrophe.

“In Defense of Clergy, the Court Strikes Blow for Religious Liberty”

May 9, 2023; Article #37

In 1977, in McDaniel v. Paty, the U.S. Supreme Court delivered a landmark ruling that held unconstitutional one of the last anticlerical remnants of the founding era, a 1796 Tennessee law that prohibited ministers and priests from holding public office.

“Church and State: The Court Prohibits Religious Tests for Office”

May 3, 2023; Article #36

Delegates to the Constitutional Convention, as part of their commitment to separating church from state, unanimously adopted a clause in Article VI, declaring that “no religious Test shall ever be required as a qualification to any Office or public Trust under the United States.”

“The Supreme Court’s First Big Decision on State Powers”

April 26, 2023; Article #35

In February 1793, in Chisholm v. Georgia, the U.S. Supreme Court, fully mindful of the evolving political and legal tensions surrounding the nature of the nation-state relationship, rendered its first important decision on the scope of state authority.

Justice Chase’s Impeachment and Judicial Independence

April 19, 2023; Article #34

In its first and only impeachment trial of a Supreme Court Justice, the U.S. Senate in 1805 acquitted Samuel Chase of charges against him, a historic decision that raises profoundly important questions about judicial independence and accountability and illuminates the challenges facing Justice Clarence Thomas.

“Applying Impeachment Clause to Supreme Court Justices”

April 12, 2023; Article #33

National conversations surrounding the remote possibility of impeaching Justice Clarence Thomas for accepting—and failing to report—lavish gifts from a GOP billionaire with interests before the Supreme Court have prompted important questions from readers about the application of the Impeachment Clause to Supreme Court Justices.

Trump’s Case: When Novel Theories Become Legal Principles

April 5, 2023; Article #32

Defendant Donald J. Trump and his supporters have assailed the 34-count felony indictment of the former president brought by the Manhattan District Attorney as resting on a flimsy, untested and novel legal theory that converts Trump’s alleged misdemeanors to felonies.

“U. of Wyoming Transgender Lawsuit: Who is a Woman?”

March 29, 2023; Article #31

A federal lawsuit reflective of the nationwide culture wars is challenging the right of a University of Wyoming sorority to induct a transgendered woman, raising questions of central importance to the First Amendment Right of Freedom of Association and Title VII of the 1964 Civil Rights Act. The issues in the suit are likely to be replicated across the nation as the judicial system wrestles with legislative efforts to regulate, distinguish and deny opportunities and rights of the LGBTQ community.

“Vulnerable to Indictment, Trump’s Cases Subject to the Law”

March 22, 2023; Article #30

Former President Donald Trump has said he expects to be indicted by a Manhattan grand jury any day now. Although widely anticipated, there is no certainty that he will be indicted by grand jurors in New York or, for that matter, by citizens serving on grand juries in Washington or Atlanta, led by prosecutors examining, respectively, his potential obstruction of justice of a federal investigation involving the “Mar-a-Lago Papers” or his effort to overturn the results of the 2020 election in Georgia.

Court Declares a Right to Contraceptives for Unmarried Individuals

March 15, 2023; Article #29

In 1965, in the landmark case of Griswold v. Connecticut, the U.S. Supreme Court, for the first time in our nation’s history, invoked the right to privacy for the purpose of upholding the right of married couples to access contraceptives. Griswold was hailed by women, who had been fighting for the right to use contraceptives for well over a century. It granted women control over their own reproductive organs and provided married couples with the liberty to decide whether to procreate, plan families and make decisions associated with parenthood.

Court Finally Ends Race Discrimination in Public Accommodations

March 7, 2023; Article #28

Racial discrimination in southern hotels and restaurants throughout the 19th and 20th centuries, Congress determined in 1964 through hearings and studies, had created for Black Americans great challenges and difficulties in their desire to travel from state to state. The Supreme Court had held a century before that Americans enjoyed a constitutional right to travel, but how could Blacks realistically exercise that right without access to lodgings and places to eat?

Supreme Court in Nebbia: “An Ominous Fork in the Road”

March 1, 2023; Article #27

The immense pressures inflicted on the United States by the Great Depression of the 1930s forced the Supreme Court on several occasions to confront the scope of a state’s police power to regulate economic activity in the name of the general welfare.

The Supreme Court Delivers Landmark Victory for Farmers

February 22, 2023; Article #26

In 1877, in Munn v. Illinois, the U.S. Supreme Court delivered a landmark ruling that, to this day, ranks as one of the most important victories ever rendered for farmers in American legal history. The decision rewarded Midwestern farmers for their broad and sustained political activism in a long campaign to protect their economic interests in a confrontation with the “all powerful railroads.”

Mike Pence Seeks Refuge in the Speech or Debate Clause

February 14, 2023; Article #25

Former Vice President Mike Pence plans to invoke the Speech or Debate Clause as justification for challenging a subpoena issued by Special Counsel Jack Smith in his investigation of former President Donald Trump’s efforts to overturn the 2020 election. Pence’s claim to immunity from the subpoena shines a spotlight on an important but largely inconspicuous constitutional provision. Article I, section 6 protects “Senators and Representatives” from arrest “for any Speech or Debate in either House,” and stipulates that “they shall not be questioned in any other Place.”

State of the Union Address: The Constitution and Politics

February 8, 2023; Article #24

President Joe Biden’s delivery of what has become the annual State of the Union Address fulfilled one of the few constitutional obligations imposed upon the nation’s chief executive. 

The First Amendment and Free Speech on Campus

February 1, 2023; Article #23

The difficulties that college and university administrators from California to Massachusetts have faced over the past 30 years in protecting their students from harassment, within the context of America’s constitutional commitment to freedom of speech, were brought center stage once more in December of 2022 at the University of Wyoming, where a church elder was banned from the student union for harassing an LGBTQ student by name.

“The Constitution and Government Classification of Secrets”

January 25, 2023; Article #22

Questions surrounding news that President Joe Biden and former Vice President Mike Pence have disclosed possession of classified documents in their homes justify interruption of this column’s weekly focus on landmark Supreme Court rulings. Curious readers have asked about the constitutional, legal and historical foundations of government authority to classify documents.

Tinker v. Des Moines: Anchoring Students’ Free Speech Rights

January 18, 2023; Article #21

Half a century later, Tinker v. Des Moines Independent Community School District (1969) remains the Supreme Court’s authoritative ruling on symbolic speech and the First Amendment rights of K-12 students to express their political views.

“Buck v. Bell: The Supreme Court Upholds Forced Sterilization”

January 10, 2023; Article #20

In a tragic, landmark ruling of historic dimensions, the Supreme Court, in 1927, in an opinion written by Justice Oliver Wendell Holmes, upheld the forced sterilization of a Virginia woman erroneously characterized by the state as “feeble minded,” grounded on the chilling rationale that, “three generations of imbeciles are enough.”

“Powell v. McCormack: Confining Congress to the Constitution”

January 4, 2023; Article #19

Congressman-Elect Ron Santos’s (R-NY) sweeping distortions of his personal and professional biography have triggered nationwide calls for the House of Representatives to prevent him from assuming his seat in the 118th Congress. Americans have recoiled from his many false claims, including that he is Jewish and that his grandparents fled Nazi persecution, that he is a graduate of Baruch College and that he worked for Goldman Sachs and Citigroup.

“At Year’s End: A Duty to Protect our Constitutional Democracy”

December 28, 2022; Article #18

In this season of peace, remembrance and celebration, we are beckoned by the ghosts of 1776 and 1787 to recall the historic work of this nation’s founders in establishing a republic grounded in the aspirational principles of liberty, equality and self-governance, and our duty as citizens to defend it.

“Constitutionally Speaking, A Former President May Be Prosecuted”

December 20, 2022; Article #17

It is unclear if the Department of Justice will charge former President Donald Trump with four crimes referred by the January 6 Committee, but there should be no doubt, constitutionally speaking, that an ex-president is subject to criminal prosecution.

“Law and History Reject Unlimited Legislative Power”

December 14, 2022; Article #16

For the generation that framed and adopted the Constitution, legislative despotism was not merely theoretical, but real. The Founders’ fears were drawn from their experience under Parliament, which saddled an aspiring Republic with laws that violated their rights and liberties and denied their goal of independence. Henry Adams, the preeminent historian of the founding period, observed, “a great majority of the American people shared the same fears of despotic government.”

“Donald Trump’s Call to Terminate the Constitution”

December 7, 2022; Article #15

As the entire world knows by now, former President Donald Trump, the presumptive leader of the Republican Party, has called for the “termination” of the Constitution to overturn the 2020 election. Trump’s landmark demand, if implemented, would eviscerate the Constitution, American democracy and the rule of law.

“Lynch v. Donnelly: Christmas Creche and the Constitution”

November 30, 2022; Article #14

The public role of religion in American life, long a challenging issue for the Supreme Court in its interpretation of the Establishment Clause of the Constitution, commanded nationwide attention in 1984 when a lawsuit was brought against Pawtucket, Rhode Island, for its erection of a nativity scene in the center of the city’s downtown shopping district.

“Near v. Minnesota: Bulwark of Press Freedom”

November 22, 2022; Article #13

At this juncture in American history, when the citizenry seems to require frequent reminders of the landmark decisions and actions that poured and preserved the foundation of our constitutional democracy, we would do well to recall the transformative importance of Near v. Minnesota (1931), in which the Supreme Court delivered a ruling that built a wall of protection for freedom of the press against governmental censorship.

“Blaisdell: Constitutional Flexibility in the Face of Crisis”

November 15, 2022; Article #12

The enormous pressures and hardships—financial, medical and psychological—inflicted on the citizenry by the Great Depression required creative governmental responses that stressed the limits of the Constitution.

Before the Court: The Future of National Unity

November 8, 2022; Article #11

Two hundred years ago, in the landmark case of Cohens v. Virginia (1821), the future of our Constitution, the aspirations of national unity, and the status and role of the federal judiciary itself, were before the Supreme Court. We have seldom seen in one case the coalescence of so many issues fundamental to the integrity of our constitutional system.

“Affirmative Action in Universities: Has it a Future?”

November 2, 2022; Article #10

The controversial use by college admission committees of an applicant’s race was the subject of a five-hour hearing before the U.S. Supreme Court this week in cases involving Harvard University and the University of North Carolina. The lengthy oral argument brought to a fever pitch the long-simmering question of the constitutionality of race-conscious programs—affirmative action policies—that were upheld in the Court’s landmark ruling in 1978 in Regents of University of California v. Bakke.

Presidents and Former Presidents are Subject to Subpoenas

October 26, 2022; Article #9

The 1807 treason trial of Aaron Burr, lost in the mists of early American legal history, stirs, at most, only faint recollections among members of the Bar, let alone the general public. But Chief Justice John Marshall’s landmark ruling that the president is required to obey subpoenas represents a principle that is fundamental to American Constitutionalism and the rule of law.

“Equal Protection: Serving Sons and Daughters”

October 19, 2022; Article #8

In 1996, the Supreme Court delivered a landmark opinion in United States v. Virginia that exalted women’s rights under the Equal Protection Clause of the 14th Amendment by ending the 157-year-old tradition of all-male education at the Virginia Military Institute, one of the nation’s most distinguished military colleges.

“Muller v. Oregon: Protection for Women in the Workplace”

October 8, 2022; Article #7

The U.S. Supreme Court’s long, tortured road to recognizing women’s constitutional rights in the late 20th Century was preceded by victories based, not on the principle of their equality, but on the perception of their inferiority. The Court had laid the groundwork in Bradwell v. Illinois (1873), by declaring women weak and therefore unfit for the practice of law. Their place, said the High Tribunal, was in the home. They required protection from the ugly occupations of civil life.

“Supreme Court in 1873: Women Unfit to Practice Law”

October 5, 2022; Article #6

Not every landmark Supreme Court decision champions the rights of Americans or limits governmental power in a manner that preserves and protects our constitutional democracy. Some seminal rulings shock the conscience, rock the foundation of the nation and reflect crude and outdated prejudices which, when viewed from afar, are reminders that we have, indeed, made some progress.

U.S. v. Smith: No Presidential Power to Initiate War

September 7, 2022; Article #5

American legal history firmly rejects the view advanced by some commentators and politicians that the president, not Congress, may decide when to initiate war.  It was, of course, decided by the U.S. Supreme Court in a series of rulings at the dawn of the republic that Congress alone possesses the constitutional authority, by virtue of the War Clause, to declare war and to determine its nature and scope.

A Little-Known Landmark Ruling of Historic Dimensions

September 21, 2022; Article #4

Little v. Barreme, decided by the U.S. Supreme Court in 1804, may be among the least familiar landmark rulings ever rendered, but it settled momentous constitutional and legal questions that plumb the depths of American history.

The Court Protects the American Labor Movement

September 11, 2022; Article #3

In a stunning decision on April 12, 1937, with enormous constitutional, economic and societal importance, the U.S. Supreme Court, in National Labor Relations Board v. Jones & Laughlin Steel Corporation, upheld a law that transformed workers’ rights and labor relations.

The Court, the Minimum Wage Ruling and the Holy Ghost

September 5, 2022; Article #2

The Supreme Court, in a landmark ruling in West Coast Hotel v. Parrish (1937), set against the backdrop of President Franklin D. Roosevelt’s controversial court-packing plan, shocked the nation when it upheld state authority to impose a minimum wage law, less than a year after it had declared that such laws violated the freedom of contract protected by the Due Process Clause of the 14th Amendment.

Shelley v. Kraemer: “My Little Soul is Overjoyed”

August 31, 2022; Article #1

In 1947, in the context of changing attitudes about race and a historic shift in federal policy on the practice of segregation in housing, punctuated by President Harry S. Truman’s spirited attack on discrimination in America, the Supreme Court delivered a landmark decision in Shelley v. Kraemer that rendered racial covenants unenforceable. In a 6-0 opinion authored by Chief Justice Fred Vinson, the Court destroyed the most efficient and systematic tool for maintaining Jim Crow traditions and denying racial minorities from accessing decent housing.