TODAY ALL OF US RECOGNIZE that the Supreme Court plays an important part in our daily lives, as it defines what rights belong to the citizens of this country, what Congress and state legislatures can and cannot do, how far presidential authority extends, and what is the proper balance between the powers of the national government and those of the states. But when George Washington took the oath of office in 1789 as the first president under the Constitution, he had difficulty finding men to serve as justices of the Supreme Court that Congress had created. During its first decade, although the Court handed down some important decisions, few people in the country thought of the judicial arm as a coequal partner in the national government, comparable to the executive or legislative branch. The first chief justice of the United States, John Jay, resigned to become governor of New York, and Associate Justice John Rutledge left to become chief justice of South Carolina. The constitutional declaration in Article III that “the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish,” seemed to many an afterthought.
That, of course, changed when John Marshall became chief justice in 1801. Just as Washington had clothed the bare-bones description of the presidency with the flesh and blood of practice, so Marshall gave life to some of the key phrases of the Constitution, and in doing so made the Supreme Court not only a significant player in the affairs of the national government but also the final arbiter of what the Constitution means. For more than 210 years it has been what the Court says that has influenced major trends in our historical development, and has defined the important phrases in the Constitution. We understand what interstate commerce, freedom of speech, and equal protection of the law mean because of what the Court has said.
Each generation of Americans brings new questions before the courts, and the flexibility that the Framers built into the Constitution has allowed it to respond to issues that the founding generation never even imagined. Sometimes the decisions have been controversial, and there have been some false starts. But for the most part, the justices have done a good job of reading the words of an eighteenth-century document to cover the contingencies raised in the ensuing decades.
Although the U.S. Supreme Court is one of the most powerful constitutional courts in the world, it can only decide those issues that come within its jurisdiction. In the early nineteenth century the French traveler Alexis de Tocqueville declared that in the United States all important political questions ultimately wind up as judicial questions. But the justices cannot just reach out and decide an issue; they must wait until a “case or controversy” is properly brought before them, and then they carefully weigh just which questions they wish to answer.
These cases and controversies are not abstract, and they involve real people—the men and women who brought the issues into the courts to begin with—people like William Marbury challenging the authority of a president, Dred Scott claiming to be free, and Myra Bradwell believing that women ought to be allowed to practice law. In more modern times we find Jacob Abrams arguing that the First Amendment gave him a right to voice unpopular opinions, Lillian Gobitas refusing to salute the flag because of her religious beliefs, and Oliver Brown wanting his daughter Linda to go to a desegregated school.
When I studied constitutional history in graduate school, and later on in law school, the emphasis was on the case holding. In this case the Court decided that a particular clause of the Constitution meant a certain thing, and therefore the statute in question was either constitutional or not. We never met the litigants, other than in one or two sentences at the beginning of the opinion setting out how the case began. One could read through such famous decisions as Marbury v. Madison (1803), Plessy v. Ferguson (1896), Olmstead v. United States (1928), and Roe v. Wade (1973) and know absolutely nothing about William Marbury, Homer Plessy, Roy Olmstead, and Norma McCorvey (Jane Roe). Who were these people? What were the circumstances that brought their cases into court? What were the larger social, economic, and political developments that lay behind their cases?
The so-called new constitutional history that began in the late 1970s and early 1980s demanded that teachers and students pay more attention to such questions. Great scholars such as E. S. Corwin and Willard Hurst had always done so, but they had been a minority. Now men and women who had been trained in law and history or law and political science entered the field who articulated the need to understand not just the jurisprudence of a case, but the social conditions that surrounded it. One could not discuss the Plessy case, for example, and ignore the growth of segregation after the Civil War, or why someone like Homer Plessy challenged it. Nor could one deal with Abrams without understanding the fear of radical ideas during wartime and the fact that ideas regarding free speech—ideas we now all take for granted—were not yet part of the constitutional dialogue.
One of my teachers, John A. Garraty, edited the first effort to provide these stories to students, and his Quarrels That Have Shaped the Constitution had a long and successful run as a supplemental text in college courses. That book has long been out of print, and I am grateful to Westview Press, and especially to my editor, Priscilla McGeehon, for agreeing with me that a new text was needed—one that would tell the stories behind some of the most important cases in our history. I would also like to thank Marcelle Maginnis and Laura Stewart for their editorial assistance.
One of the problems for anyone trying to tell constitutional stories is choosing which ones to include. Every teacher of constitutional history in the country has his or her “favorite” cases, and all would be legitimate contenders for inclusion. In this collection I have tried to provide cases that handle issues that not only were important in the past but still resonate today—issues of privacy, free speech, and race; treatment of women, Native Americans, and gays; and rights of people accused of crimes. There are other cases that also address these questions—and indeed many more as well—but a choice had to be made both among the topics to consider and which stories to tell. These are my choices, and in the selection I relied heavily on my own experience in teaching constitutional history and law. My hope is that others will find the tales as compelling as I do.
Melvin Urofsky
Virginia Commonwealth University