23. The Republican Party, as led by Jefferson at the time, is the forerunner of the modern day Democratic Party.
24. For a brief account of the presidential election of 1800 see www.archives.gov/exhibit_hall/treasures_of_congress/page_7.html#.
25. William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper were the four named in Marbury v. Madison, 5 U.S. 137 (1803).
26. A writ of mandamus is an order from a court directing a party to a suit to perform a specific function. In Marbury v. Madison, Marbury asked the court to order Madison to deliver his commission to the federal bench, allowing Marbury to assume the office to which he had been nominated and confirmed.
27. Peters, 55.
28. Jack Shepherd, The Adams Chronicles, Four Generations of Greatness (Boston: Little, Brown and Company, 1975), 213.
29. The Jeffersonian Congress had moved aggressively to undo previous acts of the Federalist Congress. The previous Congress, in the waning days of President Adams’s term, had passed the Judiciary Act of 1801, which added several federal judicial positions and significantly changed the structure of the federal judiciary. The Judiciary Act of 1802 repealed the 1801 act. “Congress also postponed the next term of the Supreme Court until 1803 so that the Court could not rule on the constitutionality of the 1802 act [the Judiciary Act of 1802] before the act went into effect.” Nelson, 69.
30. Page Smith, The Constitution, A Documentary and Narrative History (New York: William Morrow and Company, Inc., 1978), 318.
31. Marbury v. Madison, 5 U.S. 137 (1803).
32. Ibid.
33. Ibid., 178–79.
34. Letter from Thomas Jefferson to Abigail Adams, 1804. Available at etext.lib.virginia.edu/jefferson/quotations/jeff1030.htm.
35. Letter from Thomas Jefferson to William C. Jarvis, 1820. Available as cited above.
Chapter Three: In the Court We Trust?
1. Ronald Reagan, Radio Address to the Nation, September 18, 1982, reprinted in The Quotable Ronald Reagan (Peter Hannaford, ed., Washington, D.C.: Regnery, 1998), 247.
2. U.S. Constitutional Amendment I.
3. Santa Fe Independent School District v. Doe, 530 U.S. 290, 318 (2000).
4. This is the letter in which Jefferson introduced the phrase “wall of separation between Church & State,” but in a context, as we’ll see, that has been misappropriated by judges.
5. Everson v. Board of Ed. of Ewing, 330 U.S. 1, 8–10 (1947).
6. See Edwin Scott Gaustad, A Religious History of America (1990), 67–68, Timothy L. Hall, “Roger Williams and the Foundations of Religious Liberty,” 71 B.U.L. Rev. 455, 464 (May 1991).
7. Thomas Jefferson, Notes on Virginia, in The Life and Selected Writings of Thomas Jefferson (Adrienne Koch & William Peden, eds., Modern Library, 1993), 173, 252–253.
8. Michael Novak, On Two Wings: Humble faith and common sense at the American founding (San Francisco: Encounter Books, 2002), 52.
9. Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State (New York: New York University Press, 2002), 32–33.
10. Ibid.
11. Ibid., 33.
12. During the Constitutional Convention, Madison opposed a Bill of Rights. He was concerned, like most others at the Convention, that by listing certain rights, it might be misconstrued as leaving unprotected, from the federal government, those rights not listed. George Mason, also a delegate to the Constitutional Convention from Virginia, had authored the Virginia Declaration of Rights in 1776. He insisted on the adoption of a federal Bill of Rights. It was voted down. For this reason, among others, Mason voted against the Constitution. Madison later supported amending the Constitution to include most of the rights protected in the Virginia Declaration of Rights, and as the primary author of the Bill of Rights, Madison borrowed liberally from Mason’s writings. For the quote, see: Wallace v. Jaffree, 472 U.S. 38, 95 (1985) (Rehnquist J. dissenting, citing J. Elliot, Debates on the Federal Constitution 659 (1891), 730).
13. Novak, 33.
14. Joseph Loconte, “Faith and the founding: the influence of religion on the politics of James Madison,” Journal of Church and State, September 22, 2003, 7.
15. Vincent Phillip Muñoz, “Establishing Free Exercise,” First Things, December 2003, 14, 18.
16. Ibid.
17. Ibid.
18. Joseph Loconte, “James Madison and Religious Liberty,” Heritage Foundation Reports, Executive Memorandum, No. 729, March 16, 2001.
19. Wallace v. Jaffree, 472 U.S. 38, 100-01 (1985) (Rehnquist J. dissenting, citing 1 Annals of Cong 914 (1789)).
20. Ibid., 102–03.
21. Ibid., 103.
22. Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947).
23. Although the Supreme Court first mentioned Jefferson’s metaphor in 1879, in the case Reynolds v. United States, in which the Court upheld a law banning polygamy, it didn’t become constitutional doctrine until Everson.
24. Dreisbach, 1–2.
25. Ibid., 21–
22. Michael Knox Beran, “Behind Jefferson’s Wall,” City Journal, Spring 2003, 68–79.
26. Dreisbach, 57–58.
27. Everson v. Board of Ed. of Ewing, 330 U.S. 1, 3 (1947).
28. Ibid., 16.
29. Ibid.
30. Ibid., 18.
31. Roger K. Newman, Hugo Black, A Biography (New York: Pantheon Books, 1994).
32. Gerald T. Dunne, Hugo Black and the Judicial Revolution (New York: Simon & Shuster, 1977), 269, quoting Hugo Black, Jr., My Father (New York: Random House, 1975), 104.
33. Bruce Fein, “Religious Season, Consideration of State Influence; Scrutiny of government’s assistance to religions should focus on the furthermore [sic] of predominant secular purposes,” The Recorder, December 27, 1993.
34. Wallace v. Jaffree, 472 U.S. 38, 92 (1985).
35. Robert Chanin, FOX Special Report With Brit Hume, February 19, 2002.
36. Rev. Barry Lynn, “Court Upholds Vouchers; Cleveland tuition program OK’d in 5–4 decision,” Cleveland Plain Dealer, June 28, 2002.
37. Ralph Neas, “Bully Pulpit,” Richmond Times Dispatch, February 15, 2004.
38. Wallace v. Jaffree, 472 U.S. 38, 107.
39. Ibid., 107.
40. Ibid., 110–111.
41. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
42. Ibid., 662.
43. Ibid., 686.
44. Locke v. Davey, 124 S.Ct. 1307 (2004). The scholarship was open to students graduating in the top 15% of their class or achieving a score of 1200 or better on the Scholastic Aptitude Test or a 27 or better on the American College Test. The student’s family income had to be “less than 135% of the State’s median.” Each student had to enroll at least half time in an eligible postsecondary institution in Washington.
45. Ibid., 1311.
46. Engel v. Vitale, 370 U.S. 421 (1962). See the discussion in David Limbaugh’s Persecution (Washington, D.C.: Regnery, 2003), 18–20.
47. Lee v. Weisman, 505 U.S. 577 (1992).
48. Ibid., 93.
49. Vincent Phillip Muñoz, testimony before the Senate Judiciary Committee, June 8, 2004.
50. Elk Grove Unified School District v. Newdow, 124 S. Ct. 2301 (2004).
51. Ibid., 2306.
52. Tony Mauro, “The Custody Dispute Behind the Pledge of Allegiance Case; Court could duck issue by finding father’s unsettled status voids standing,” New Jersey Law Journal, November 10, 2003.
53. Howard Fineman, “One Nation, Under…Who?” Newsweek, July 8, 2002, 20.
54. Ibid.
55. Mauro, “The Custody Dispute Behind the Pledge of Allegiance Case.”
56. Newdow v. United States Cong., 328 F.3d 466, 483 (9th Cir. 2002).
57. Newdow v. United States Cong., 292 F.3d 597, 607 (9th Cir. 2002).
58. Ibid., 602.
59. Mauro, “The Custody Dispute Behind the Pledge of Allegiance Case.”
60. Ibid.
61. Newdow v
. United States Cong., 313 F.3d 500, 502–03 (9th Cir. 2002).
62. Maura Dolan, “They Pray for Judicial Restraint; Advisors to a volatile atheist hope he is up to the delicate task of arguing his Pledge of Allegiance case before the Supreme Court,” Los Angeles Times, March 23, 2004.
63. Elk Grove Unified School District v. Newdow, 124 S. Ct. 2301, 2316 (2004).
64. Ibid., 2320.
65. Ibid., 2321.
66. Ibid., 2301.
67. Ibid., 2328.
68. On August 19, 2004, the U.S. Court of Appeals for the Third Circuit struck down a law that required schoolchildren to either sing the national anthem or recite the Pledge of Allegiance. Associated Press, “Judge: Pa.’s Pledge law violates First Amendment,” August 20, 2004. We have now reached the point at which judges are striking down laws that embrace the very traditions our nation is founded upon.
69. Available at www.aclu.org/ReligiousLiberty/ReligiousLibertylist.cfm?c=38.
Chapter Four: Death by Privacy
1. Ronald Reagan, “Abortion and the Conscience of the Nation,” National Review Online, June 10, 2004, originally appearing in the Human Life Review, Spring 1983.
2. Poe v. Ullman, 367 U.S.497 (1961). The first legal mention of a “right to privacy” was in an article in the Harvard Law Review in 1890, written by Louis Brandeis and Samuel Warren, but it was about a different issue entirely: protecting people from an intrusive press. See Gary McDowell, “Private Lives, Perverted Law,” New Jersey Law Journal, June 20, 1991.
3. Melvin L. Wulf, “On the origins of privacy; constitutional practice,” The Nation, May 27, 1991.
4. Poe, 367 U.S. 539.
5. Wulf, “On the origins of privacy; constitutional practice.” Emphasis added.
6. Tamar Lewin, “The Bork Hearings; Bork is Assailed Over Remarks on Contraceptive Ruling,” New York Times, September 19, 1987.
7. Griswold v. Connecticut, 381 U.S. 479 (1965).
8. Ibid., 484.
9. Webster’s New World Dictionary (third edition, 1991).
10. Griswold, 381 U.S. 485.
11. Ibid., 508.
12. Ibid., 509.
13. Ibid., 510.
14. Eisenstadt v. Baird, 405 U.S. 438 (1972).
15. Ibid., 453.
16. Ibid.
17. Ibid.
18. Roe v. Wade, 410 U.S. 113, 118 (1972).
19. David Gergen, Eyewitness to Power: the essence of leadership: Nixon to Clinton (New York: Simon & Schuster, 2000), 20.
20. Transcript, “Justice Harry Blackmun’s newly released papers,” National Public Radio, March 8, 2004.
21. Ibid.
22. Aaron Epstein, “Abortion Decision is his Legacy; Blackmun Defended Individuals’ Rights,” Detroit Free Press, April 7, 1994.
23. Bob Woodward and Scott Armstrong, The Brethren (New York: Avon Books, 1981), 214.
24. David G. Savage, “The Nation; Papers of Roe-Wade Author to Be Released,” Los Angeles Times, February 29, 2004.
25. Woodward and Armstrong, 215.
26. Lyle Denniston, “Blackmun, author of Roe vs Wade, dies; Retired justice, 90, saw 1973 abortion ruling as women’s rights victory,” Baltimore Sun, March 5, 1999.
27. Woodward and Armstrong, 272–73.
28. Ibid., 196.
29. Roe v. Wade, 410 U.S. 113, 116 (1972).
30. Ibid., 152–53. (internal citations omitted).
31. Ibid., 162.
32. Ibid., 159.
33. Stenberg v. Carhart, 530 U.S. 914 (2000).
34. Ibid., 930.
35. Savage, “The Nation; Papers of Roe-Wade Author to Be Released.”
36. Chris Bull, “Balance of justice: cultural advances, openly gay clerks, and speculation about the sexual orientation of one of their own have substantially changed the way the Supreme Court justices weigh civil rights,” The Advocate, March 4, 2003.
37. Callins v. Collins, 510 U.S. 1141, 1145–1146 (1994).
38. Responding pointedly to Blackmun’s pronouncement, Justice Scalia stated: “Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us, the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared to that!” Ibid., 1143.
39. Paul Sullivan, “Retired Justice Blackmun Dies,” Boston Herald, March 5, 1999.
40. Planned Parenthood v. Casey, 505 U.S. 833, 923 (1992).
41. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
42. Fred Barbash, “Blackmun’s Papers Shine Light Into Court; Justice’s Trove Opened by Library of Congress,” Washington Post, March 5, 2004.
43. Pennsylvania had enacted the Abortion Control Act, which required informed consent, a twenty-four-hour waiting period, spousal notification for adult women, and parental consent for minors. There was a provision for minors to seek consent from a judge when parental consent was impracticable. In Casey, the Supreme Court created a new test for future legislative abortion limits: the undue burden test. It found that only the spousal notification provision failed this test.
44. Casey, 505 U.S. at 850–51.
45. Ibid., 851.
46. Lawrence v. Texas, 123 S. Ct. 2472, 2489 (2003).
47. Ibid.
48. Ibid., 2475.
Chapter Five: Justices in the Bedroom
1. Lawrence v. Texas, 539 U.S. 558, 602 (2003).
2. Nancy Dillon and Michael Saul, “Say ‘nay’ to gay nups,” New York Daily News, March 15, 2004.
3. Lambda Legal Defense and Education Fund, Freedom to Marry/Marriage Project Brochure, available at www.lambdalegal.org.
4. Bowers v. Hardwick, 478 U.S. 186 (1986).
5. Lawrence v. Texas, 539 U.S. 558 (2003).
6. Romer v. Evans, 517 U.S. 620 (1996).
7. William F. Buckley Jr. “Bedroom Rights: Should Kerry be denied communion?” National Review Online, May 4, 2004. Available at www.nationalreviewonline.com.
8. Stuart Taylor, Jr., “Case on Rights for Homosexuals Will be Heard by Supreme Court,” New York Times, November 5, 1985.
9. Ibid. Al Kamen, “High Court to Review Rights of States to Regulate Adults’ Sexual Activities; Constitutional Issue Addressed for First Time in Sodomy Case,” Washington Post, November 5, 1985; Stuart Taylor, Jr., “High Court, 5–4, Says States Have the Right to Outlaw Private Homosexual Acts; Division is Bitter,” New York Times, July 1, 1986. “Powell Wavered on Sodomy Ruling,” Chicago Tribune, July 14, 1986.
10. Bowers v. Hardwick, 478 U.S. 186, 191 (1986).
11. Ibid.
12. Ibid., 191–92.
13. Ibid., 193–94.
14. Ibid., 194.
15. Ibid., 195.
16. Ibid., 195–96.
17. Ibid., 216.
18. Ibid., 196.
19. Ned Zeman and Michael Meyer, “No ‘Special Rights’ for Gays,” Newsweek, November 23, 1992.
20. Editorial, “The Case for the Colorado Boycott,” New York Times, December 21, 1992.
21. Al Knight, “Romer’s political instincts don’t live up to their billing,” Denver Post, October 30, 1994.
22. Romer v. Evans, 517 U.S. 620 (1996).
23. Kennedy was President Ronald Reagan’s third choice for his seat on the Court, following the 58–42 Senate vote against Robert Bork and Douglas Ginsburg’s withdrawal.
24. Romer v. Evans, 517 U.S. 620, 631 (1996).
25. Ibid., 632.
26. Ibid., 636, citing Bowers v. Hardwick, 478 U.S. 186 (1986).
27. Ibid., 641.
28. Ibid., 653.
29. Lawrence v. Texas, 538 U.S. 918 (2003).
30. Charles Lane, “Justices Overturn Texas Sodomy Ban; Ruling is Landmark Victory for Gay Rights,” Washington Post, June 27, 2003.
31. Paul Duggan, “Texas Sodomy Arrest Opens Legal Battle for Gay Activists,” Washington Post, November 29, 1998.
32. Lawrence v. Texas, 2003 U.S. TRANS LEXIS 30 (U.S. TRANS, 2003). A transcript that identifies which justice is speaking is available on the Internet at www.oyez.org/oyez/resource/case/1542/argument/transcript). The full text of the poem, written by an Oxford student in 1680, is, “I do not love thee, Dr. Fell, The reason why I cannot tell; But this alone I know full well, I do not love thee, Dr. Fell.” (Michael Kirkland, “Court hears challenge to Texas sodomy ban,” United Press International, March 26, 2003. )
33. Ibid.
34. Associated Press, April 20, 2003.
35. “Senate Republican Caucus chair Rick Santorum is a bigot,” Capital Times (Madison, WI) April 25, 2003.
36. New Republic, May 5, 2003.
37. Lawrence v. Texas, 123 S. Ct. 2472, 2475 (2003).
38. Ibid., 2494.
39. Ibid., 2480.
40. Ibid., 2481.
41. Ibid., 2484.
42. Ibid.
43. Ibid., 2495.
44. Ibid., 2498.
45. Lambda Legal Defense Fund, “A New Era for Gay Americans,” June 26, 2003, available at www.lambdalegal.org.
46. Transcript of Susan Sommer, Lambda Legal Supervising Attorney, discussing Lawrence v. Texas, June 26, 2003. Available at www.lambdalegal.org.
47. Goodridge v. Dept. of Pub. Health, 14 Mass. L. Rep. 591 (Mass. Super. Ct. 2002).
48. Goodridge v. Dept. of Pub. Health, 440 Mass. 309, 312 (Mass. 2003).
49. Ibid., 343.
50. Ibid.
51. Ibid., 344.
52. Opinions of the Justices to the Senate, 440 Mass. 1201, 1202 (Mass. 2004).
53. Ibid., 1207–08.
54. Ken Maguire, “Marriage-license applications given to same-sex couples in Massachusetts,” Associated Press, May 17, 2004.
55. U.S. Constitution, Article IV, § 1.
56. 28 USC § 1738(C) (2004).
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