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You are reading the appendix to"The 37th Amendment," a novel by Susan Shelley. Copyright 2002. All rights reserved. This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author. Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited.
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Supreme Court decisions can be found online at Findlaw, at this URL:
and at Cornell Law School's Legal Information Institute site at this URL (both as of 22 February 2002):
Historical documents of the United States, including the Constitution and the Federalist Papers, can be found online at the Web site of the U.S. Congress:
In the interests of readability, the paragraphing in some quotations has been altered, and some citations within opinions have been eliminated or moved to the footnotes. Titles are listed in full the first time they are cited and slightly abbreviated thereafter. Regarding the Latin abbreviations in the notes: "id." means "the same" and "ibid." means "from the same work."
9 Charles J. Cooper, "Limited Government and Individual Liberty: The Ninth Amendment's Forgotten Lessons" in Eugene W. Hickok, Jr., editor, The Bill of Rights: Original Meaning and Current Understanding 425 (1991); Berger, Government by Judiciary 55 (1997).
13 The amendment passed in the House but died in the Senate. Annals of Congress, vol. 1 (Washington D.C.: Gales & Seaton, 1834) pp. 424-49, cited in Hickok, The Bill of Rights 4 (1991). See also Levy, Original Intent and the Framers' Constitution 166-170 (1988).
15 Thomas Jefferson, letter to Abigail Adams,
September 11, 1804; cited in Berger, Government by Judiciary 293 (1997).
The letter can be viewed online in the Library of Congress manuscript collection
(the quote appears on page 2 of 3) at this URL, as of 22 February 2002:
18 Farrand, Records of the Federal Convention of 1787 2:73, 1:97-98, 108 (1911), cited by Justice Hugo L. Black in Griswold v. Connecticut, 381 U.S. 479, at 514-5 [footnote 6] (1965), dissenting opinion.
20 William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt 238 (1995); Berger, Government by Judiciary 155 (1997); Levy, Original Intent and the Framers' Constitution 146 (1988).
29 Charles Fairman, "Does the Fourteenth Amendment Incorporate the Bill of Rights?" 2 Stanford Law Review 44 (1949), cited in Berger, Government by Judiciary 32 (1997); Raoul Berger, The Fourteenth Amendment and the Bill of Rights 22-3 (1989).
31 William Blackstone, Commentaries on the Laws of England 129, 134, 138 (1765-1769), cited in Berger, Government by Judiciary 30-31 (1997); Berger, The Fourteenth Amendment and the Bill of Rights 110 (1989).
32 The Fifteenth Amendment, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude," was certified to be in effect on March 30, 1870.
33 Abraham Lincoln, Speech at Columbus, Ohio,
September 16, 1859. The text of the speech may be found in Complete Works
of Abraham Lincoln, John G. Nicolay and John Hay, editors. (New York:
Francis D. Tandy Company, 1894) 5:143-144. Additionally, the speech is available
online at the Northern Illinois University site at this URL, as of 22 February
53 "[I]f in the adoption of [the fourteenth] amendment it had been part of its purpose to perpetuate the institution of the grand jury in all the states, it would have embodied, as did the fifth amendment, express declarations to that effect." Id. at 535.
56 "The objection that the proceeding by information does not amount to due process of law has been heretofore overruled, and must be regarded as settled by the case of Hurtado v. California." Id. at 584.
57 "Trial by jury has never been affirmed to be a necessary requisite of due process of law. In not one of the cases cited and commented upon in the Hurtado Case is a trial by jury mentioned as a necessary part of such process." Id. at 603.
65 The spelling of Raymond Stuart's name is given as "Stewart" in the Brown v. Mississippi decision, but the local newspaper in Meridian, Mississippi, reported it as "Stuart," as cited in Richard C. Cortner, A "Scottsboro" Case in Mississippi 13 (1986).
67 See note 61, above.
88 Id. at 71. Justice Black's analysis of the records of the 39th Congress would be challenged two years later by Professor Charles Fairman in a Stanford Law Review article ("Does the Fourteenth Amendment Incorporate the Bill of Rights?" 2 Stanford Law Review 5 ) which has been widely regarded as definitive. "Charles Fairman demolished Justice Hugo L. Black's opinion in the Adamson case on the question whether the Fourteenth Amendment was intended to incorporate the Bill of Rights as limitations on the states," wrote constitutional historian Leonard W. Levy. (Levy, Original Intent and the Framers' Constitution 300 ). Constitutional scholar Alexander Bickel called Fairman's article "conclusive." (Bickel, The Least Dangerous Branch 102 ). See also Berger, The Fourteenth Amendment and the Bill of Rights 8 (1989). Justice John Marshall Harlan, dissenting in the 1968 case of Duncan v. Louisiana and joined by Justice Potter Stewart, wrote, "The overwhelming historical evidence marshalled by Professor Fairman demonstrates, to me conclusively, that the Congressmen and state legislators who wrote, debated, and ratified the Fourteenth Amendment did not think they were 'incorporating' the Bill of Rights." (391 U.S. 145, at 174 ).
105 See note 29, above.
109 Garnes v. McCann, 21 Ohio 198 (1871); Cory et al v. Carter, 48 Ind. 327 (1874); State ex rel Stoutmeyer v. Duffy, 7 Nevada 342 (1872); Ward v. Flood, 48 California 36 (1874); People ex rel King v. Gallagher, 93 N.Y. 438 (1883); Bertonneau v. The Directors of City Schools, 3 Woods 177 (Federal) La. (1878). These six cases are discussed in detail in "Did the Court Interpret or Amend?" contained in Virginia Commission on Constitutional Government, We the States 321-363 (1964).
116 Alexander Hamilton wrote in Federalist No. 78: "The judiciary...can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." The Federalist, Modern Library edition 504 (1937).
118 Schwartz, Super Chief 112-3 (1983). In his 1977 memoirs (The Memoirs of Chief Justice Earl Warren 291), Warren said Eisenhower used the phrase "big, overgrown Negroes," but Schwartz says the chief justice "toned down" the language for publication.
119 Chief Justice Warren cited seven separate studies with titles like "Effect of Prejudice and Discrimination on Personality Development" in Footnote 11 of the Brown decision. 347 U.S. 483, at 494 (1954).
136 Justice Clark wrote in his draft opinion, "the criminal will go free, if he must, but he will be freed by the law." Tom C. Clark Papers, Tarlton Library, University of Texas; cited in Schwartz, Super Chief 394 (1983).
138 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 2nd ed., (Washington D.C.: U.S. Congress, 1836), 2:362, cited in Raoul Berger, "The Cruel And Unusual Punishments Clause," in Hickok, The Bill of Rights 305 (1991).
139 Congressional Globe 1120 (39th Congress, 1st Session, 1866), cited in Raoul Berger, Death Penalties, toExcel edition, 25 (1999). For a long list of similar statements by various Supreme Court justices during the 20th century, see ibid., Chapter 2, note 79, at p. 26.
140 "The number of cases on the Supreme Court's docket approximately tripled from the 1951 term to the 1971 term, and the rate of increase was much greater in the second of those two decades. At the 1951 term, the Court had 1,353 cases before it clamoring for review. At the 1961 term, the number was 2,570. At the 1971 term, it was 4,515." Alexander M. Bickel, The Caseload of the Supreme Court And What, If Anything, To Do About It 5 (1973).
146 "The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him." Id. at 437.
183 Jefferson County School District superintendent Jane Hammond told the Denver Post, "I visited the students there and it appeared to be a creating environment, where students feel safe." Mark Obmascik, "High School Massacre - Columbine bloodbath leaves up to 25 dead." The Denver Post, 21 April 1999: A-01.
184 "A governmental regulation is sufficiently justified if it is within the constitutional power of the Government and furthers an important or substantial governmental interest unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to that interest." United States v. O'Brien, 391 U.S. 367 (1968).
196 Raoul Berger, Congress v. The Supreme Court 1-4 (1969). See also Raoul Berger, "Insulation of Judicial Usurpation: A Comment on Lawrence Sager's 'Court-Stripping' Polemic," 44 Ohio State Law Journal 611-647 (1983), reprinted in Raoul Berger, Selected Writings on the Constitution 230-262 (1987).
200 "Throughout that long period the federal judiciary, as we now see it, encroached upon the authority of the several states, producing a considerable dislocation in our federal system." Charles Fairman, American Constitutional Decisions, Revised Edition, 170 (1950).
202 See note 30, above.
203 Columnist William Raspberry wrote, "We've all got our scary Halloween monsters. Here's mine: A U.S. Supreme Court with five justices whose politics, reasoning and opinions echo those of Justices Antonin Scalia and Clarence Thomas. Unfortunately, my monster has a very good chance of becoming real. Indeed Texas Gov. George W. Bush has promised to make it real. Not only has he been using that hair-raising phrase 'strict constructionist' to describe the kind of people he would appoint to the federal courts, he's actually said Scalia and Thomas are his prototypes. And what's so scary about that? Nothing--unless you happen to recall a previous invocation of strict constructionism during the Nixon era, when that phrase was taken (by some of us, at least) to signal a pulling back from such things as desegregation." ("Fright Court." Washington Post, 27 October 2000: A35). The New York Times warned in an editorial, "guarantees of civil rights and reproductive freedom took years to build. They could be undone in a flash by a pliable and inexperienced president driven by a highly ideological Congress." ("Al Gore for President." New York Times, 29 October 2000: 4:16). Al Gore said during a debate with George W. Bush, "when the phrase 'strict constructionist' is used, and when the names of Scalia and Thomas are used as benchmarks for who would be appointed, those are code words." (Neil A. Lewis, "Presidential Candidates Differ Sharply on Judges They Would Appoint to Top Courts." New York Times, 8 October 2000: 1:28). Jeffrey Rosen wrote, "the vote of a single new justice could decide whether or not race-conscious admissions in public schools and universities are permitted in America." ("The Next Court." New York Times, 22 October 2000: 6:74).
204 Farewell Address, September 19, 1796.
The speech can be found online at the University of Virginia Web site at
this URL, as of 22 February 2002:
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