For general reading about the Constitution, I recommend the following: Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2006); Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven, CT: Yale University Press, 1998); Erwin Chemerinsky, Constitutional Law: Principles and Policies (New York: Aspen, 2006); and Laurence H. Tribe, American Constitutional Law, 3rd ed. (New York: Foundation, 2000).
The best overall account of the incompatibility clause is Steven G. Calabresi and Joan L. Larsen, “One Person, One Office: Separation of Powers or Separation of Personnel?” Cornell Law Review 79, no. 5 (1994): 1045–1157. For a nice description and defense of separation of powers generally, check out Martin H. Redish and Elizabeth J. Cisar, “ ‘If Angels Were to Govern’: The Need for Pragmatic Formalism in Separation of Powers Theory,” Duke Law Journal 41, no. 3 (1991): 449–506. To see what the framers had to say about separation of powers, one good place to look is The Federalist Papers, especially nos. 47, 48, and 51. The case where the Court held that Congress could not reserve to itself the right to veto the president’s firing of an executive officer is Myers v. United States, 272 U.S. 52 (1926). The case where the Court approved of a statute creating the independent counsel is Morrison v. Olson, 487 U.S. 654 (1988). The phrase “bankrupts, bullies, and blockheads,” is reported from Calabresi and Larsen’s “One Person, One Office,” p. 1057, which itself quotes from the classic historical work Gordon S. Wood, The Creation of the American Republic, 1776–1787 (1969), which in turn quotes a March 26, 1778, issue of the Boston Independent Chronicle. For the debate over whether the president must step down from a congressional seat upon taking the oath of office, see the following: Seth Barrett Tillman, “Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause,” Duke Journal of Constitutional Law & Public Policy 4 (2009): 107–41; Saikrishna Bangalore Prakash, “Why the Incompatibility Clause Applies to the Office of the President,” Duke Journal of Constitutional Law & Public Policy 4 (2009): 143–51. For the lower federal-court case on the military reservists, see Reservists Committee to Stop War v. Laird, 323 F. Supp 833 (1971). For the Supreme Court case, see Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974). For historical discussions of the executive branch’s meandering interpretation of the ineligibility clause, see Daniel H. Pollitt, “Senator/Attorney-General Saxbe and the ‘Ineligibility Clause’ of the Constitution: An Encroachment Upon Separation of Powers,” North Carolina Law Review 53, no. 1 (1974): 111–33, and Michael Stokes Paulsen, “Is Lloyd Bentsen Unconstitutional?” Stanford Law Review 46, no. 4 (1994): 907–18. For the last two OLC opinions on the ineligibility clause, see Memorandum Opinion for the Attorney General from David J. Barron, Acting Assistant Attorney General, “Validity of Statutory Rollbacks as a Means of Complying with the Ineligibility Clause,” May 20, 2009, available on the Web site of the Office of Legal Counsel, www.justice.gov/olc/. The Cooper memorandum on Orrin Hatch had not previously been released until the release of the May 2009 memorandum, although at least one scholar—Michael Paulsen, whose aforementioned piece on Lloyd Bentsen is a fascinating and entertaining read that I rely on for the story about Bork, Hatch, and Kennedy—had suspected that such a memorandum existed. Paulsen speculates that if it weren’t for the Reagan administration’s strict adherence to the text of the ineligibility clause, perhaps Roe v. Wade might have been overruled, since it is unlikely that Orrin Hatch would have joined any sort of opinion upholding the earlier case, as Justice Anthony Kennedy did in the case Planned Parenthood v. Casey in 1992. The two commentators who think the incompatibility clause is responsible for keeping our government from becoming parliamentary-like are Calabresi and Larsen, cited above. To read the views of the separation-of-powers critics, see Donald L. Robinson, ed., Reforming American Government: The Bicentennial Papers of the Committee on the Constitutional System (Boulder, CO: Westview, 1985). To read an excellent critique of these views, see Thomas O. Sargentich, “The Limits of the Parliamentary Critique of the Separation of Powers,” William and Mary Law Review 34, no. 3 (1993): 679–739.
On the Mars climate orbiter fiasco, see the following: John Noble Wilford, “Mars Orbiting Craft Presumed Destroyed by Navigation Error,” New York Times, September 24, 1999; Andrew Pollack, “Two Teams, Two Measures Equaled One Lost Spacecraft,” New York Times, October 1, 1999. The case involving the California toad is Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (DC Circuit 2003). The citation for Lopez is 514 U.S. 549 (1995). The Violence Against Women Act case is United States v. Morrison, 529 U.S. 598 (2000). The case involving medical marijuana is Gonzalez v. Raich, 545 U.S. 1 (2005). The article that suggests Congress had exercised all of its powers before it ever exercised its weights and measures power is David P. Currie, “Weights and Measures,” Green Bag 2, no. 3 (1999): 261–66. This article also discusses the early history of the weights and measures clause, including the various commissioned reports of Jefferson and Adams. The report of the academic committee from New York, which includes Adams’s famous report, is Charles L. Davies, The Metric System, Considered with Reference to Its Introduction into the United States; Embracing the Reports of the Hon. John Quincy Adams, and the Lecture of Sir John Herschel (New York and Chicago: A. S. Barnes & Co., 1871). For the story about how the official kilogram is shedding a tiny bit of its weight every year, see Otto Pohl, “Scientists Struggling to Make the Kilogram Right Again,” New York Times, May 27, 2003. For a history of the United States Metric Board, see United States Metric Association, History of the United States Metric Board, http://lamar.colostate.edu/~hillger/laws/usmb.html. Also see David Bjerklie, “What Ever Happened to Metric?” Time, July 6, 1987. For the most recent case on the “intelligible principle” doctrine, see Whitman v. American Trucking Association, 531 U.S. 457 (2001). For Mankiewicz’s account of his conspiracy with Nofziger to get rid of the Metric Board, see Frank Mankiewicz, “Nofziger: A Friend with Whom It Was a Pleasure to Disagree,” Washington Post, March 29, 2006.
The controversial appointee who was accused of being racially insensitive was Charles Pickering. For more on his nomination, see Neil A. Lewis, “Bush Seats Judge after Long Fight, Bypasses Senate Democrats,” New York Times, January 17, 2004. The judge who was proud of ruling against children with birth defects was Priscilla Owens. For more on her nomination, see David D. Kirkpatrick, “For Judge Owen, Self-Reliance in Life and Law,” New York Times, May 26, 2005. On Pryor, see Sheryl Gay Stolberg, “A Different Timpanist,” New York Times, June 10, 2005. The following are excellent academic articles on the recess-appointments clause; I relied on these sources for much of my discussion of the clause, its history, and the issues it has raised: Edward A. Hartnett, “Recess Appointments of Article III Judges: Three Constitutional Questions,” Cardozo Law Review 26, no. 2 (2005): 377–442; Michael Herz, “Abandoning Recess Appointments? A Comment on Hartnett (and Others),” Cardozo Law Review 26, no. 2 (2005): 443–62; and Michael B. Rappaport, “The Original Meaning of the Recess Appointments Clause,” UCLA Law Review 52, no. 5 (2005): 1487–1578. Another excellent source of information is Henry B. Hogue, CRS Report for Congress—Recess Appointments: Frequently Asked Questions (Washington, DC: Congressional Research Service, 2008). The commentator who talks about vacations as “happening” is Hartnett, “Recess Appointments of Article III Judges,” at pp. 382–83. The New York Times editorial was published on December 8, 1903. The Knox opinion is “President—Appointment of Officers—Holiday Recess,” Official Opinions of the Attorney General of the United States 23 (December 24, 1901). The Daugherty opinion is “Executive Power—Recess Appointments,” Official Opinions of the Attorney General of the United States 33 (August 27, 1921). The opinion about public committees starting off their sessions with sectarian prayers is Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008). On the issue of whether the Senate can terminate the president’s recess appointments, see Seth Barrett Tillman, “Senate Termination of Presidential Recess Appointments,” Northwestern University Law Review Colloquy 103 (January 2009): 286–91, and Brian Kalt, “Keeping Recess Appointments in Their Place,” Northwestern University Law Colloquy 103 (January 2009): 292–97. These two have written other articles on the subject, but I’ll spare you. Kalt’s article about Idaho is “The Perfect Crime,” Georgetown Law Journal 93, no. 2 (2005): 675–88. The court of appeals decision in the Pryor case is Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).
The Ellis Island case is New Jersey v. New York, 523 U.S. 767 (1998). The case where a federal appellate court ruled that New York law applied on the island is Collins v. Promark Products, 956 F.2d 383 (2nd Cir. 1992). The “judicial review” case is Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). The statute that gives district courts concurrent jurisdiction over most of the types of cases that fall under the Supreme Court’s original jurisdiction is 28 U.S.C. § 1251. The most comprehensive source for information about state-versus-state cases, and a book on which I draw heavily for my information and categorization of the various cases, is Joseph F. Zimmerman, Interstate Disputes: The Supreme Court’s Original Jurisdiction (Albany: State University of New York, 2006). Cites for all of the state-versus-state cases discussed in the chapter can be found in Zimmerman’s book, but here are citations for a few of the cases discussed here: Texas v. Florida, 306 U.S. 398 (1939); New Mexico v. Texas, 275 U.S. 279 (1927); Missouri v. Illinois, 200 U.S. 496 (1906). The Time magazine article about the Maine–New Hampshire dispute is “New England: Lobster War,” July 2, 1973. The best source of information about the special masters is Anne-Marie C. Carstens, “Lurking in the Shadows of Judicial Process: Special Masters in the Supreme Court’s Original Jurisdiction Cases,” Minnesota Law Review 86, no. 3 (2001): 625–716. Other articles on the original-jurisdiction clause include James Pfander, “Rethinking the Supreme Court’s Original Jurisdiction in State-Party Cases,” California Law Review 82, no. 3 (1994): 555–662; and “The Original Jurisdiction of the United States Supreme Court,” Stanford Law Review 11 (July 1959): 665–700. A short and funny piece on Supreme Court jury trials is Robert A. James, “Instructions in Supreme Court Jury Trials,” Green Bag 1, no. 4 (1998): 377–80.
The symposium put together by William Eskridge and Sanford Levinson is called “Constitutional Stupidities: A Symposium,” Constitutional Commentary 12, no. 2 (1995): 139–225. The symposium was later turned into a book: William N. Eskridge and Sanford Levinson, eds., Constitutional Stupidities, Constitutional Tragedies (New York: New York University Press, 1998). The point about getting no points for condemning the fugitive slave law was made by Lief Carter, “ ‘Clause and Effect’: An Imagined Conversation with Sanford Levinson,” Constitutional Commentary 12, no. 2 (1995): 155–58. The professor who called the symposium “vapid” was Phillip Bobbitt, “Parlor Game,” Constitutional Commentary 12, no. 2 (1995): 151–54. The critic of life tenure who likened the United States to China was L. A. Powe Jr., “Old People and Good Behavior,” Constitutional Commentary 12, no. 2 (1995): 195–97. The two articles criticizing the natural-born citizen clause in the symposium were Randall Kennedy, “A Natural Aristocracy?” Constitutional Commentary 12, no. 2 (1995): 175–77, and Robert Post, “What Is the Constitution’s Worst Provision?” Constitutional Commentary 12, no. 2 (1995): 191–93. Post is the one who called the clause a “vestigial excrescence.” The case holding term limits unconstitutional is U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). On the age requirement for president, the case in which Frankfurter noted that it “draws on arithmetic” is National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949) (Frankfurter, J., dissenting). For the argument that “thirty-five” means sufficiently mature or experienced, see Giradeau Spann, “Deconstructing the Legislative Veto,” Minnesota Law Review 68 (1984): 532. For the extension of that argument, see Gary Peller, “The Metaphysics of American Law,” California Law Review 73 (1985): 1174. On the “unstoppable virus,” see Anthony D’Amato, “Aspects of Deconstruction: The ‘Easy Case’ of the Under-Aged President,” Northwestern University Law Review 84 (1990): 255. For the “teenage guru,” see Mark Tushnet, “A Note on the Revival of Textualism in Constitutional Theory,” Southern California Law Review 58 (1985): 686–88. For criticism of the natural-born citizen clause, see Frederick Schauer, “Constitutional Invocations,” Fordham Law Review 65 (1997): 1301 (“morally dubious”); William Safire, “The Constitution’s Flaw,” New York Times, September 6, 1987 (“blatantly discriminatory”); John W. Dean, “The Pernicious ‘Natural Born’ Clause of the Constitution,” FindLaw, Writ, October 8, 2004, http://writ.news.findlaw.com/dean/20041008.html (“lowdown dirty shame” and “inane”; “Permit me”); Post, “What Is the Constitution’s Worst Provision?” (“highly objectionable”). For excellent general articles discussing the history and meaning of the natural-born citizen clause, see Jill A. Pryor, “The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty,” Yale Law Journal 97, no. 5 (1988): 881–900; Christina S. Lohman, “Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause,” Gonzaga Law Review 36, no. 2 (2000–01): 349–74; and Sarah Helene Duggin and Mary Beth Collins, “ ‘Natural Born’ in the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution’s Presidential Qualifications Clause and Why We Need to Fix It,” Boston University Law Review 85, no. 1 (2005): 53–154. For the Bob Hope example, see Schauer, “Constitutional Invocations,” at p. 1302, n. 28. Information about the birther movement is everywhere on the Web. For one good account, see Alex Koppelman, “Why the Stories about Obama’s Birth Certificate Will Never Die,” Salon, December 5, 2008, http://www.salon.com/news/feature/2008/12/05/birth_certificate. On the number of people who think Obama was born abroad, see Dalia Sussman and Marina Stefan, “Obama and the ‘Birthers’ in the Latest Poll,” New York Times, April 21, 2010. The Washington, DC, judicial opinion is Hollister v. Soetoro, 601 F.Supp. 2d 179 (D.D.C. 2009). The opinion from California is Barnett v. Obama (C.D. Cal. Oct. 29, 2009). The opinion from Georgia is Rhodes v. MacDonald (M.D. Ga. Sept. 18, 2009). For Medved’s comments, see Ben Smith, “Culture of Conspiracy: The Birthers,” Politico, March 1, 2009. For the argument about Obama being a kitten and meowing all day long, see Teo Bear, “Birthers and Dualers are Constitutionalists,” http://www.birthers.org/misc/birthersdualers.html (last accessed May 26, 2010). For the Tribe-Olson memo on McCain, see appendix A: “Opinion of Laurence H. Tribe and Theodore B. Olson Dated March 19, 2008,” in Gabriel J. Chin, “Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship,” Michigan Law Review First Impressions 107 (2008): 19–21, http://www.michiganlawreview.org/assets/fi/107/chin.pdf. For the argument in favor of McCain responding to Chin, see Stephen E. Sachs, “Why John McCain Was a Citizen At Birth,” Michigan Law Review First Impressions 107 (2008): 49–57, http://www.michiganlawreview.org/assets/fi/107/sachs.pdf. The current succession statute is located at 3 U.S.C. § 19. James Ho’s piece is “Unnatural Born Citizens and Acting Presidents,” Constitutional Commentary 17, no. 3 (2000): 575–86. Ho quotes Demolition Man in his footnote 10.
The bottomless-dancing case is California v. Larue, 409 U.S. 109 (1972). Okrent’s terrific book about Prohibition is Daniel Okrent, Last Call: The Rise and Fall of Prohibition (New York: Scribner, 2010). Tribe’s piece about the Twenty-first Amendment is Laurence H. Tribe, “How to Violate the Constitution without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment,” Constitutional Commentary 12 (1995): 217–21. For the discussion of “maximalist” and “minimalist” interpretations of Section 2, see Jonathan M. Rotter and Joshua S. Stambaugh, “What’s Left of the Twenty-first Amendment?” Cardozo Public Law, Policy, & Ethics Journal 6, no. 3 (2008): 601–50. The California beer tax case is State Board of Equalization v. Young’s Market Co., 299 U.S. 59 (1936). The topless-dancing case is New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981). The Y chromosome 3.2 percent beer case is Craig v. Boren, 429 U.S. 190 (1976). The Rhode Island liquor-advertising case is 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). The Court has upheld nude dancing and other adult-entertainment regulations on the grounds that these regulations target the secondary effects of the dancing, rather than the entertainment itself—see City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986)—or because nude dancing is conduct rather than speech, or because regulation of nude dancing is justified by moral concerns, see Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). The Puerto Rico no-serving-alcohol-in-the-wee-hours-of-the-morning case is Broadwell v. San Juan, 312 F.Supp.2d 132 (D. Puerto Rico 2004). The Missouri pool hall case is Spudich v. Smarr, 931 F.2d 1278 (8th Cir. 1991). The Yablon-Zug piece is Marcia Yablon, “The Prohibition Hangover: Why We Are Still Feeling the Effects of Prohibition,” Virginia Journal of Social Policy & the Law 13 (Spring 2006): 552–95. For an excellent account of what Section 2 was supposed to mean, see Asheesh Agarwal and Todd Zywicki, “The Original Meaning of the 21st Amendment,” Green Bag 8, no. 2 (2005): 137–43. The Hawaii pineapple-wine case is Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984). The case striking the discriminatory Michigan and New York laws is Granholm v. Heald, 544 U.S. 460 (2005).
For the full story of the Maersk Alabama, see Robert D. McFadden and Scott Shane, “In Rescue of Captain, Navy Kills 3 Pirates,” New York Times, April 13, 2009, and Mark Mazzetti and Sharon Otterman, “U.S. Captain Is Hostage of Pirates; Navy Ship Arrives,” New York Times, April 9, 2009. On Paul’s suggestion to use letters of marque to fight pirates, see Erika Lovley, “Ron Paul’s Plan to Fend Off Pirates,” Politico, April 15, 2009. For Ely’s point about Congress’s authority to instigate all hostilities, see John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (Princeton, NJ: Princeton University Press, 1995). The other pro-Congress scholar quoted is Louis Fisher, from his Presidential War Power (Lawrence: University Press of Kansas, 1995). The quote from John Yoo on presidential authority to instigate hostilities is from “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” California Law Review 84 (March 1996): 167–305. To read the “torture memo” and other related documents from the Bush administration, take a look (if you can bear to) at Karen J. Greenberg and Joshua L. Dratel, eds., The Torture Papers: The Road to Abu Ghraib (New York: Cambridge University Press, 2005). The “dynamic duo” is David J. Barron and Martin S. Lederman; the quote is from their article “The Commander in Chief at the Lowest Ebb—A Constitutional History,” Harvard Law Review 121, no. 4 (2008): 941–1111. The Prakash quote is from Saikrishna Bangalore Prakash, “Separation and Overlap of War and Military Powers,” Texas Law Review 87, no. 2 (2008): 299–386. On the history of letters of marque and reprisal, see J. Gregory Sidak, “The Quasi War Cases—and Their Relevance to Whether ‘Letters of Marque and Reprisal’ Constrain Presidential War Powers,” Harvard Journal of Law and Public Policy 28 (Spring 2005): 465–500; C. Kevin Marshall, “Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars,” University of Chicago Law Review 64, no. 3 (1997): 953–82; and Nicholas Parrillo, “The De-Privatization of American Warfare: How the U.S. Government Used, Regulated, and Ultimately Abandoned Privateering in the Nineteenth Century,” Yale Journal of Law and Humanities 19, no. 1 (2007): 1–95. On the relationship between the letters of marque and reprisal clause and the president’s authority (or nonauthority) to instigate hostilities, the other “prominent writer” is Jules Lobel, “ ‘Little Wars’ and the Constitution,” University of Miami Law Review 50, no. 1 (1995): 61–80. The defenders of presidential powers on this score are John Yoo and C. Kevin Marshall, in the articles cited above. The quote from Jules Lobel on the issue of Congress’s power to make tactical decisions during wartime comes from his article “Conflicts between the Commander in Chief and Congress: Concurrent Power over the Conduct of War,” Ohio State Law Journal 69, no. 3 (2008): 391–467. The other article cited is Ingrid Brunk Wuerth’s “International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered,” Michigan Law Review 106, no. 1 (2007): 61–100. The quote about Johnny Depp is from Andrew Grotto of the Center for American Progress, quoted in the Politico article cited above; the quote about Swiss bank accounts also comes from this article and was uttered by Eli Lehrer of the Competitive Enterprise Institute (who also is the source of the Rambo quote earlier in the chapter). The military expert whose law journal article weighs in on the letters of marque issue is Major Theodore Richard, who makes the point in “Reconsidering the Letter of Marque: Utilizing Private Security Providers against Piracy,” Public Contract Law Journal 39, no. 3 (2010): 411–64.
The account of Norman Schwarzkopf’s knighthood comes from Karen de Witt, “No Sword and No Kneeling, Schwarzkopf Is Knighted,” New York Times, May 21, 1991; and Christopher Hitchens, “Knighting of General Norman Schwarzkopf,” Nation, June 17, 1991. The Supreme Court cases described in the section on equality are Brown v. Board of Education, 347 U.S. 483 (1954); Loving v. Virginia, 388 U.S. 1 (1967); Batson v. Kentucky, 476 U.S. 79 (1986); and United States v. Virginia, 518 U.S. 515 (1996). Much of the information about the history of the title of nobility clauses comes from Carlton F. W. Larson, “Titles of Nobility, Hereditary Privilege, and the Unconstitutionality of Legacy Preferences in Public School Admissions,” Washington University Law Review 84, no. 6 (2006): 1375–1440; and Jol A. Silversmith, “The ‘Missing Thirteenth Amendment’: Constitutional Nonsense and Titles of Nobility,” Southern California Interdisciplinary Law Journal 8 (April 1999): 577. The controversy over the Society of the Cincinnati is recounted in Larson, “Titles of Nobility.” I got the facts about the knighted Norwegian penguin from Raphael G. Satter/Associated Press, “King Penguin Receives Norwegian Knighthood at Scottish Zoo,” ReadingEagle.com (Penn.), August 15, 2008, http://readingeagle.com/article.aspx?id=102427. The attorney general opinion about J. A. Udden is “Field Assistant on the Geological Survey—Acceptance of an Order from the King of Sweden,” Official Opinions of the Attorney General of the United States 28 (1911). The Foreign Gifts and Decorations Act can be found at 5 U.S.C. section 7342. The information about the titles of nobility amendment comes from Silversmith, The ‘Missing Thirteenth Amendment.’ ” For more on the Twenty-seventh Amendment, and other amendments that have never been ratified, see Richard L. Berke, “More Amendments Lurk in the Mists of History,” New York Times, May 24, 1992. The military rank system case is United States v. Thomason, 444 F.2d 1094 (D. Cal. 1971). The magistrate case is United States v. Riley, 1991 WL 192115 (D. Kan. 1991). The driver’s license case is State v. Larson, 419 N.W. 2d 897 (ND 1988). The “von” case is In re Jama, 272 N.Y.S.2d 677 (N.Y. City Civ. Ct. 1966). The article by Larson is “Titles of Nobility,” cited above. The article by Liptak is Adam Liptak, “A Hereditary Perk the Founding Fathers Failed to Anticipate,” New York Times, January 15, 2008. The article by Delgado is Richard Delgado, “Inequality ‘From the Top’: Applying an Ancient Prohibition to an Emerging Problem of Distributive Justice,” UCLA Law Review 32, no. 1 (1984): 100–134.
On the Military Commissions Act, see Hamdan v. Gates, 565 F. Supp. 2d 130 (D.D.C. 2008), and the February 20, 2008, decision of military judge Peter E. Brownback III in United States v. Omar Ahmed Khadr. On AIG, see Carl Hulse and David Herszenhorn, “House Approves 90% Tax on Bonuses after Bailouts,” New York Times, March 19, 2009. On the ACORN controversy, see ACORN v. United States, 662 F. Supp. 2d 585 (E.D. N.Y. 2009). On the commitment of sex offenders and the ex post facto clauses, see Smith v. Doe, 538 U.S. 84 (2003). On the bill of attainder clause generally, see the discussion in Zechariah Chafee Jr., Three Human Rights in the Constitution of 1787 (Lawrence: University of Kansas Press, 1956), and an unsigned student article that turned out to have been written by John Hart Ely, “The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause,” Yale Law Journal 72, no. 2 (1962): 330–67. On the punishment for treason in England, see J. H. Baker, “Criminal Courts and Procedure at Common Law 1550–1800,” in Crime in England, 1550–1800, ed. J. S. Cockburn (London: Methuen, 1977), p. 42. On the bill of attainder supported by Thomas Jefferson, see Jack Lynch, “A Patriot, a Traitor, and a Bill of Attainder,” Colonial Williamsburg: The Journal of the Colonial Williamsburg Foundation 24, no. 1 (2002): 12–17, and William Romaine Tyree, “The Case of Josiah Phillips: How Virginia Came to Pass a Bill of Attainder,” Virginia Law Register 16, no. 9 (1910): 648–58. The Supreme Court cases discussed are as follows: Fletcher v. Peck, 10 U.S. 87 (1810); Cummings v. Missouri, 71 U.S. 277 (1867); Ex parte Garland, 71 U.S. 333 (1867); United States v. Lovett, 328 U.S. 303 (1946); United States v. Brown, 381 U.S. 437 (1965); Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984); Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Quotes from Madison and Hamilton cited in U.S. v. Brown. The case invalidating Amendment 2 is Romer v. Evans, 517 U.S. 620 (1996). The citation for Amar’s article is Michigan Law Review 95, no. 1 (1996): 203–35. Rick Hills’s response is Roderick M. Hills Jr., “Is Amendment 2 Really a Bill of Attainder? Some Questions about Professor Amar’s Analysis of Romer,” Michigan Law Review 95, no. 1 (1996): 236–54. The Nebraska case is Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (D. Neb. 2005), reversed by 455 F.3d 859 (8th Cir. 2006). Grassley quote: Martin Kady II, “Grassley on AIG Execs: Quit or Suicide,” Politico, March 16, 2009, http://www.politico.com/news/stories/0309/20083.html. On whether the AIG tax would have been constitutional, see Richard A. Epstein, “Is the Bonus Tax Unconstitutional?” Wall Street Journal, March 26, 2009, and Jonathan Adler, “More on AIG Bonus Tax as Bill of Attainder,” Volokh Conspiracy, March 22, 2009, http://www.volokh.com/posts/1237734930.shtml. The ACORN case in the Second Circuit is ACORN v. United States, 618 F.3d 125 (2nd Cir. 2010). “Somebody has to” and other quotes in that paragraph: ACORN v. United States, 662 F. Supp. 2d 285, 296 (E.D. N.Y. 2009).
Peggy Noonan’s piece is called “Expect the Unexpected: Why the Third Amendment May Once Again Be Needed,” December 7, 2000, available at www.peggynoonan.com/article.php?article=85. The privacy cases I discuss are Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973); and Lawrence v. Texas, 539 U.S. 558 (2003). On substantive due process during the Lochner era, see Lochner v. New York, 198 U.S. 45 (1905), and West Coast Hotel Company v. Parrish, 300 U.S. 379 (1937). For a terrific account of FDR’s Court-packing plan, see Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (New York: Norton, 2010). On Justice McReynolds being a bigot, see Shesol’s book at p. 102, where Shesol describes how McReynolds refused to talk to the Court’s two Jewish justices at the time—Justices Brandeis and Cardozo. On Justice Ginsburg and Roe, see Linda Greenhouse, “Judge Ginsburg Still Voices Strong Doubts on Rationale Behind Roe v. Wade Ruling,” New York Times, November 29, 2005. On Ely and Roe, see John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Journal 82, no. 5 (1973): 920–49. On the history of the Third Amendment, the best account (and the one I discuss explicitly in the text) is probably Tom W. Bell, “The Third Amendment: Forgotten but Not Gone,” William & Mary Bill of Rights Journal 2, no. 1 (1993): 117–50. Other accounts include William S. Fields and David T. Hardy, “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History,” American Journal of Legal History 35, no. 4 (1991): 393–431; and Seymour W. Wurfel, “Quartering of Troops: The Unlitigated Third Amendment,” Tennessee Law Review 21, no. 7 (1949): 723–37. The absurd cases I discuss are Custer County Action Association v. Garvey, 256 F.3d 1024 (10th Cir. 2001) (airspace); Jones v. Secretary of Defense, 346 F. Supp. 97 (D. Minn. 1972) (parade); Securities Investor Protection Corporation v. Executive Securities Corporation, 433 F. Supp. 470 (S.D. N.Y. 1977) (subpoena); United States v. Valenzuela, 95 F. Supp. 363 (S.D. Cal. 1951) (Housing and Rent Act). The case from New York involving the National Guard and the correction officer barracks is Engblom v. Carey, 677 F.2d 957 (2nd Cir. 1982). The case on remand in which the lower court held that the officers had “qualified immunity” from money damages was Engblom v. Carey, 572 F. Supp. 44 (S.D. N.Y. 1983). Morton Horwitz’s article is “Is the Third Amendment Obsolete?” Valparaiso University Law Review 26, no. 1 (1991): 209–14. The ACLU cartoon can be found at www.aclu.org/standup/comics/readbook.php?comicid=14. A picture of the “Repeal the Third Amendment” sign can be found here: www.flickr.com/photos/gemstone/5133666734/. The Onion article can be found at www.theonion.com/articles/third-amendment-rights-group-celebrates-another-su,2296/. The articles about creative arguments to revive the Third Amendment are Geoffrey M. Wyatt, “The Third Amendment in the Twenty-first Century: Military Recruiting on Private Campuses,” New England Law Review 40, no. 1 (Fall 2005): 113–64; Josh Dugan, “When Is a Search Not a Search? When It’s a Quarter: The Third Amendment, Originalism, and NSA Wiretapping,” Georgetown Law Journal 97, no. 2 (2008): 555–87; and Andrew P. Morriss and Richard L. Stroup, “Quartering Species: The ‘Living Constitution,’ the Third Amendment, and the Endangered Species Act,” Environmental Law 30 (Fall 2000): 769–810. The quote that ends the chapter is from Mikulski v. Centerior Energy Corporation, 501 F.3d 555, 576 (6th Cir. 2007) (Daughtrey, J., dissenting).