false advertising, 8
false speech, 104
fearmongering, by aristocratic speakers, 105
federalism
Article VI and, 205–6
Committee of Eleven and, 221
in Constitution, 75
Tenth Amendment and, 33
Federalists, 237n2. See also Marbury v. Madison
Constitution and, 200–201
felons. See also convicted felons
for draft card burning, 193–94
fetus’s right to life, 32
Fifteenth Amendment
racial minorities and, 45
vote for races and, 35
Fifth Amendment, 25, 26–27, 205, 227n2
Committee of Eleven and, 212–13
Due Process Clause of, 15, 27, 175
Grand Jury Clause in, 15, 215
private property protections in, 31–32
proof beyond a reasonable doubt and, 30
property rights in, 31–32, 176
slavery and, 176
Takings Clause of, 15
undercover agents in Muslim institutions and, 28
filibuster, 90–91
First Amendment
abstractions in, 5–6
in action, 76–96
antislavery and, 31
aristocratic speakers and, 99–100, 105, 116–18
Article I and, 204–5
aspirations and, 10–12, 109–16
bad tendency doctrine and, 111
Brandeis and, 8–9
campaign finance and, 66, 67, 79–82
censorship and, 185
Cold War and, 192–93
Committee of Eleven and, 210–12
compelling interest and, 112
conduits and, 103–4, 125–26
Congress in, 5
conscience and, 18–19, 133
cost-benefit analysis for, 124
deck-chair theory of, 194–96
democracy and, 2, 11, 17–96
deregulation and, 10–12, 109–16
difficulty in reading, 5–12
Establishment Clause of, 18, 76, 98, 132, 141, 142, 144–47
fair political representation and, 14, 52
flag burning and, 11, 99, 113
flag saluting and, 134, 191
forty-five words in, 1
Founders and, 22–23
Free Assembly Clause of, 14, 17, 19–20, 98, 127–29
Free Exercise Clause of, 76, 98, 132, 134–35, 141, 144–47
Free Press Clause of, 14, 31, 71–72, 98, 103–4, 125–26
Free Speech Clause of, 13–14, 17, 19, 20–21, 39, 64–66, 72–73, 74, 80, 98, 102, 109–16, 118, 121–22, 125, 143–44, 210
freedom of association and, 30
“the freedom of” in, 5
gerrymandering and, 82–86
government regulation and, 9
hearers and, 100–102, 118–20
human dignity and, 8–9, 11
Kant and, 18, 98, 129
Kennedy and, 232n55
libel and, 9, 111, 186
literalism and, 174–75
lost features of, 13–15
lying and, 106–7
Nazism and, 100–101
Occupy Wall Street and, 127–29
originalism and, 6
participants in, 97–131
Petition Clause of, 17, 18, 20, 88–91, 98
as poem, 1–4
primary elections and, 59
pure speech and, 65
purpose of, 7–10
racial minorities and, 100
religious conscience and, 134
Republican Form of Government Clause and, 41, 42, 43, 230n6
Republican Party and, 111
right to know and, 102
secrecy and, 102
secular conscience and, 31, 134
speakers and, 99–100
speech in, 19
speech targets and, 104, 129–31
strict scrutiny and, 65, 121, 123
Supreme Court and, 10–12, 19, 78, 99, 100–101, 106–9
sweat equity, 127–29
text of, 5
third parties and, 60
Vietnam War and, 193–94
violent video games and, 107–8
voting and, 14, 61, 76–79
woman’s right whether to bear a child and, 101
World War I and, 189
flag burning
First Amendment and, 11, 99, 113
as pure speech, 123
flag saluting, 232–33n7
First Amendment and, 134, 191
in World War II, 183
Florida. See also Bush v. Gore
convicted felons in, 49–50
Equal Protection Clause and, 49
Flynn, Elizabeth Gurly, 192–93
formal accusation, Fifth Amendment and, 25
Fortas, Abe, 183
Founders
Articles of Confederation and, 198
Bill of Rights and, 1
conscience and, 30
First Amendment and, 22–23
Free Press Clause and, 31
Petition Clause and, 89
privacy and, 31
religious conscience and, 138
Republican Form of Government Clause and, 43
Second Amendment and, 23
Souter and, 29
Third Amendment and, 23
Fourteenth Amendment
Burger Court and, 45
convicted felon voting and, 45–46
Due Process Clause of, 31, 71, 77–78, 78, 205
Equal Protection Clause of, 41, 47–50, 54, 69, 71, 78, 230n4
equality and, 44
slavery and, 176
Fourth Amendment, 25, 227n2
Committee of Eleven and, 213
exclusionary rule and, 123
undercover agents in Muslim institutions and, 28
“unreasonable search and seizure” in, 15, 26, 28, 175
Warrant Clause of, 26
France
free speech in, 105
Jefferson and, 153
judicial review in, 180–81, 240n34
universal suffrage in, 35
Frankfurter, Felix, 52, 57, 191
Baker v. Carr and, 40
“one man, one vote” principle and, 74
Franklin, Benjamin, 6, 185
Free Assembly Clause, of First Amendment, 5, 14, 17, 19–20, 98, 127–29
Free Exercise Clause
conscience and, 146
democracy and, 135
of First Amendment, 76, 98, 132, 134–35, 141, 144–47
Supreme Court and, 144–47
Free Press Clause
campaign finance and, 71–72, 80
for conduits, 103–4
Constitution and, 71
corporations and, 71–72
of First Amendment, 14, 17, 31, 71–72, 98, 103–4, 125–26
Founders and, 31
Free Speech Clause
aristocratic speakers and, 143
aspirations and, 109–16
campaign finance and, 20–21, 39, 64–66
Committee of Eleven and, 210
compelling interest and, 121
democracy and, 20
deregulation and, 109–16
Establishment Clause and, 143–44
of First Amendment, 13–14, 17, 19, 20–21, 39, 64–66, 72–73, 74, 80, 98, 102, 109–16, 118, 121–22, 125, 143–44, 210
Kennedy on, 70
nonprofit organizations and, 72–73
procedural hurdles for, 121–22
Supreme Court and, 13–14, 20, 102, 109–16, 121–22, 125
torture and, 118
freedom
in Bill of Rights, 2
democracy and, 2
“the freedom of,” in First Amendment, 5
freedom of association, 19–20
democracy and, 87
First Amendment and, 14, 30
Harlan and, 30, 76, 86, 111
free-market capitalism, First Amendment and, 7
French Revolution, 153
Freud, Sigmund, 132
Frohwerk, Jacob, 190
Frost, Robert, 223
Fugitive Slave Clause, 181
gag rules, 90
Gale, George, 207
Galileo, 99, 233n2
gatekeeper control, Free Press Clause and, 126
Gates, Robert, 199
gay marriage, 33
gender equity, 78
Georgia, 237–38n9
Germany, free speech in, 105
Gerry, Elbridge, 197, 199, 208, 217
gerrymandering, 51–55
Equal Protection Clause and, 54
equality and, 84
First Amendment and, 82–86
Gerry and, 208
by Republican Party, 84–85, 229n13, 229n14
Senate and, 55
Supreme Court and, 55, 83–84
Gleeser, Carl, 190
good-faith mistake, exclusionary rule and, 123
Goodhue, Benjamin, 207
Gore, Al. See Bush v. Gore
government
censorship by, 9, 122, 125, 233n18
Establishment Clause and, 142–43
First Amendment and, 9
power creep of, 32
Supreme Court and, 121–22
Tenth Amendment and, 32
Grand Jury Clause
Committee of Eleven and, 215
in Fifth Amendment, 15, 215
Greece, democracy in, 35
Greene, Ray, 158
Guantánamo Bay military prison, 171
gun control, 184
Hamilton, Alexander, 200
Constitution and, 198
originalism and, 177
Hamilton, Andrew, 126
Harding, Warren G., 189, 191
Harlan, John Marshall, 19–20
Baker v. Carr and, 40, 41
CO and, 134
conscience and, 30
freedom of association and, 30, 76, 86, 111
secular conscience and, 41, 134
Souter and, 178
United States v. Seeger and, 236n3
Harper, William, 160, 239–40n20
Harrison, Benjamin, 188
Hayes, Rutherford B.
Electoral College and, 189
“safe-harbor” provision and, 232n51
Haywood, Big Bill, 192
hearers, First Amendment and, 100–102, 118–20
Hill, Joe, 192
Hitler, Adolf, 97, 191
Hobby Lobby. See Burwell v. Hobby Lobby
Holiday, Billie, 77
Holmes, Oliver Wendell, Jr., 7, 8, 191
Abrams v. United States and, 111
Darwinism and, 182
Debs and, 189
First Amendment and, 99
Whitney v. California and, 111
Hooe, Robert Townsend, 160, 165, 239–40n20
House of Representatives. See also electoral districts
Article I and, 204
Bill of Rights and, 217–22
caucuses in, 91
CO and, 220–21
Committee of Eleven and, 217–22
conscience and, 18–19
Keep and Bear Arms Clause and, 219
Marbury v. Madison and, 153
Marshall, John, in, 155
membership of, 208, 226–27n1
voting for, 148
“The House Was Quiet and the World Was Calm” (Stevens), 2–3
Hovey, Alvin P., 188
human dignity
First Amendment and, 8–9, 11
natural law for, 32
speech and, 8–9
idea market, 8–9
New York Times v. Sullivan and, 177
inclusio unis est exclusio alterium (inclusion of one thing is exclusion of the other), 29–30
income tax, Sixteenth Amendment and, 44
incumbents, electoral districts for, 22
Indiana, voter identification requirements in, 69, 73–74
individual self-defense, Keep and Bear Arms Clause and, 24
“ink blot,” Bork and, 33
International Workers of the World (IWW), 192–93
interrogation, in Fifth Amendment, 25, 26, 28
investigation, in Fourth Amendment, 25, 26
IWW. See International Workers of the World
Japanese internment camps, 183, 191–92, 195–96
Jay, John, 152, 154, 155, 200
Jefferson, Thomas, 2, 6, 239n17. See also Marbury v. Madison
Alien and Sedition Acts and, 195
equality and, 153
French Revolution and, 153
libel and, 186
natural law and, 32
originalism and, 177
Supreme Court and, 161–62
Jehovah’s Witnesses, 99, 191
Jews, 138, 237n10
anti-Semitism and, 8
Supreme Court and, 145
jihadist terror, 8
Jim Crow laws, 130, 183
Johnson, Andrew, 188
Johnson, Lyndon B., 112
Fortas and, 183
Johnson, Thomas, 156
Johnson v. Governor, 231n25
judges. See also Marbury v. Madison; Midnight Judges Act; Supreme Court; specific judges
democracy and, 2
as oligarchs, 2
power of, 180–81
Senate and, 159
judicial review, 148–96, 240n34
Bill of Rights and, 149–50
child-labor laws and, 181
Constitution and, 149, 179–80
corporations and, 181
labor unions and, 181
Marbury v. Madison and, 150–73
minimum wage and, 181
New Deal and, 182–85
politicization of, 180–85
Roosevelt, F., and, 182–85
slavery and, 181–82
source of, 150–51
“train wreck” cases and, 172–73
Judiciary Act of 1789, 154, 238n7
jury trial
in civil law, 27
Committee of Eleven and, 215
for criminal law, 27
Seventh Amendment and, 206
justice-of-the-peace. See Marbury v. Madison
juveniles, death penalty and, 27
Kagan, Elena, 121
Kant, Immanuel, 98, 99, 106
Keep and Bear Arms Clause
House of Representatives and, 219
in Second Amendment, 14, 24, 219
Kennedy, Anthony
on Citizens United v. FEC, 70–71, 74
on corporations, 73
First Amendment and, 232n55
on Free Speech Clause, 70
Khrushchev, Nikita, 139
Kilty, William, 156
Kimball, Hazen, 165, 240n27
King, Martin Luther, Jr., 129, 130
Knox v. SEIU, 235n39
Koch brothers, 64
Korematsu v. United States, 183, 191–92, 195–96
Ku Klux Klan, 111
labor unions
conscience and, 135
judicial review and, 181
as unlawful conspiracies, 6
Lachowsky, Hyman, 190
lame ducks
Midnight Judges Act by, 157
Twentieth Amendment and, 44
Lansing, John, 199
law enforcement, amendments for, 25
leafleting, about World War I, 6–7, 189–91
Lee, Charles, 159, 160–61, 162, 164, 165
libel
First Amendment and, 9, 111, 186
Jefferson and, 186
Lincoln, Abraham, 2
Civil War and, 6, 186–87, 195
Merryman and, 186–87
military and, 186–87
Milligan and, 187
third parties and, 60
Lincoln, Levi, 154, 158, 159, 161
Lingan, James, 159
Lipman, Samuel, 190
Stalin and, 191
Lispenard, Anthony, 152
literacy tests
for voting, 36, 45
Voting Rights Act of 1965 and, 45
Warren Court and, 45
literalism
Constitution and, 173–75
First Amendment and, 174–75
of Thomas, 29
for “unreasonable search and seizure,” 175
Livermore, Samuel, 218
living constitution, of Brennan, 29, 177
Locke, John, 99
Louisiana
electoral districts in, 78
racial minorities and, 48–49
Supreme Court of, 48–49
LULAC v. Perry, 229n13
lying, First Amendment and, 106–7
Lyon, Matthew, 6
Magna Carta, 198, 207
Mao Tse-tung, 97
Marbury v. Madison, 184, 239n19
Bill of Rights and, 173
Constitution and, 167
District of Columbia and, 168–69
Exceptions and Regulations Clause in, 170, 188
House of Representatives and, 153
judicial review and, 150–73
lack of facts for, 162–66
Midnight Judges Act and, 160
patronage and, 155–59
rule of law and, 166–67
Scalia and, 173
separation of powers and, 171
Marshall, James, 156, 159, 165
Alien and Sedition Acts and, 185–86
Marshall, John, 40. See also Marbury v. Madison
appointment as chief justice, 155
in House of Representatives, 155
patronage and, 158–59
as Secretary of State, 157, 162
Marshall, Thurgood, 41
Martin, Luther, 199
Mason, George, 199, 203
McCardle, William H., 188–89
McCarthyism, 115–16
Cold War and, 192–93
Supreme Court and, 110–11, 196
McCutcheon v. Federal Election Commission, 74, 220n17
McGovern, George, 62
mentally deficient defendants, death penalty and, 27
mercenaries, Second Amendment and, 23
Merryman, John, 186–87
Miami Herald Publishing Company v. Tornillo, 235n36
Midnight Judges Act, 207
circuit judges and, 156–57, 162, 169–72
by lame-ducks, 157
repeal of, 160, 168
military
chaplains in, 142–43
checks and balances for, 23
Constitution and, 229n19
Establishment Clause and, 142–43
Lincoln, A., and, 186–87
in Reconstruction South, 188–89
Second Amendment and, 23–25
Third Amendment and, 229n18
military draft. See also draft card burning
as slavery, 190
militia. See “well-regulated Militia,” in Second Amendment
Milligan, Lambdin P., 187–88
Milton, John, 99, 125
minimum wage, 181
Minnesota, third parties and, 61
minor parties. See third parties
Miranda warnings, 26
Madison's Music Page 29