Huzza! My brave boys, our work is complete;

The world shall admire Columbia's fair feat;

Its strength against tempest and time shall be proof, And

thousands shall come to dwell under our roof:

Whilst we drain the deep bowl, our toast still shall be

Our government firm, and our citizens free.

Judicial review may be the most publicly contested aspect of American constitutionalism. When courts void legislation, they implicitly seem to strike at the heart of the principle of separation of powers. The act inherently suggests that the elected legislature is not always the legitimate representative of the people and that democratic majoritarianism is not the fundamental principle of American politics. Because judicial review can be described in opposition to ideas often deemed fundamental to American constitutionalism, the origins of judicial review have intrigued scholars of politics, history, and law. For the last century, the origins inquiry has started from the assumption that the origins of judicial review lie in an idea, an intellectual doctrine about judicial power. In fact, the origins of judicial review lie in a pre-Revolutionary practice and idea of limited legislative authority.

Money, wrote Pennsylvanian Francis Rawle in 1725, is “the vital spirit and blood of the body politick.” Is not money, another pamphleteer contended, “the blood of life, which circulates from member to member, throughout the whole body of all living creatures?” It followed that the tokens acting as the medium of value could be anything, “whether it be pewter, silver, spelter, brass or paper, matters not which.” Americans in fact used provincial tax credit notes for money, along with other specie substitutes: “bills of credit” were issued to public creditors and could be employed by the holder or others to pay public obligations like taxes. They were “in value equal” to coin and, like coin, could be passed from hand to hand in the meantime. It was their circulating property—”the ready currency of the thing”—that controlled.

Over the last fifteen years, legal historians have been exploring conceptualizations of the state and state capacity as phenomena of police. In this essay, I offer a genealogy of police in nineteenth-century American constitutional law. I examine relationships among several distinct strands of development: domestic regulatory law, notably the commerce power; the law of indigenous peoples and immigrants; and the law of territorial acquisition. I show that in state and federal juridical discourse, police expresses unrestricted and undefined powers of governance rooted in a discourse of sovereign inheritance and state necessity, culminating in the increasingly pointed claim that as a nation-state the United States possesses limitless capacity “to do all acts and things which independent states may of right do.”

Congressional enactment of the Enforcement Acts in 1870 and 1871 marked an unprecedented federalization of voting rights. The various election laws aimed to make real the promise of the recently enacted Fourteenth and Fifteenth amendments to the constitution. A complex duality characterized this new departure in the constitutional understanding of democratic suffrage. On one hand, Republican leadership looked to secure the rights of freedmen in the Reconstruction-era South. At the same time, from the outset, northern Republicans strategically worked to strengthen the party in all regions with a particular interest in urban America. From the immediate postwar years down to the early 1890s, congressional committees regularly investigated the problematic and deeply partisan politics of enforcement. Often, House and Senate investigators were more concerned with developments in northern cities than with the state of African American voting across the rural South. This urban story of the consequences of constitutional revision illuminates the often-obscured national dimensions of Reconstruction and its aftermath, while also alerting us to shifting visions of the vote across the final third of the nineteenth century. This essay explores this nationalization of Reconstruction in the wake of the Fifteenth Amendment's enactment by first documenting the central place of New York City in the emerging postbellum electoral regime and then expanding out from Manhattan to look at broader patterns of urban experience with enforcement.

Epidemic disease, like war, is the health of the state. Since the dawn of the American Republic, state and local governments have wielded powers both plenary and plentiful to defend the people against smallpox, yellow fever, cholera, and other pestilences. Individual liberty and property rights melted away before the state's power—indeed its inherent legal duty—to protect the population from peril. Under the broad authority of the police power, state and local governments in the nineteenth century confined suspected disease-carriers against their will, established armed quarantines on land and at sea, seized private homes for smallpox pest houses, and enacted, in the approving words of the U.S. Supreme Court, “health laws of every description.”

At the turn of the twentieth century, Wisconsin, like many northern industrial states, faced a profound fiscal challenge. As one concerned citizen succinctly explained, “The two great administrative problems before our people at this time are, first, the control of corporate wealth, and, second, the establishment of a rational system of taxation.” The large-scale structural pressures created by the rise of corporate capitalism and the decline of an obsolete tax system forced all levels of government to reexamine the substance and administration of their fiscal policies. At the state and local level, many governments addressed the mismatch between the increasing demand for state services and the declining supply of revenue by turning to new levies and innovative forms of administration.

It is a regrettable feature of the scholarly literature on Woodrow Wilson that so little of it relates to, or attempts to integrate, all the different phases or various aspects of his career—as an academic political scientist, as a figure in American domestic politics, and as a shaper of American foreign policy (and begetter of what has become known as “Wilsonianism”). Of course, there have been many biographies, including some fine ones, but they have generally paid more attention to Wilson's personal life and characteristics than to his thinking. There have also been some books on his work as an academic political scientist, but these have not explored in any depth its relation to his later political career. The disjunction has some justification in that Wilson's actions and utterances as a politician certainly reflected both immediate pressures and a variety of considerations apart from his own personal beliefs and ideals. Nevertheless, he remained the same man, and an appreciation of the long-established and deeply rooted views Wilson held about the nature of politics and of historical development can enhance our understanding of his approach to the problems he faced—not least with respect to foreign policy. In this essay I will attempt to make such a connection by focusing on Wilson's thought about law and constitutions—subjects central to his thinking about politics throughout his life.

On Monday, March 12, Georgia's senior senator, Walter George, rose in the Senate to read a manifesto blasting the Supreme Court. The Manifesto condemned the “unwarranted decision” of the Court in Brown as a “clear abuse of judicial power” in which the Court “with no legal basis for such action, undertook to exercise their naked judicial power and substituted their personal political and social ideas for the established law of the land.” The signers pledged themselves “to use all lawful means to bring about a reversal of this decision which is contrary to the Constitution and to prevent the use of force in its implementation.” It was signed by nineteen of the twenty-two southern senators, by every member of the congressional delegations from Alabama, Arkansas, Louisiana, Mississippi, South Carolina, and Virginia, by all but one of the representatives from Florida, all but one from Tennessee, all but three from North Carolina, and half of the Texas delegation.

Concerned that the United States Supreme Court's abolition of the death penalty in Furman v. Georgia (1972) would not be sustained, abolitionists turned to state supreme courts. Through their efforts, two states succeeded in realizing that goal: California, briefly, and Massachusetts, where the death penalty remains unconstitutional.

In the early 1970s, fifty years after its first appearance in the U.S. Congress, the Equal Rights Amendment came the closest it ever would to ratification. The ERA declared: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” After sailing through Congress in 1972 with bipartisan support, the amendment went to the states for ratification. The response was positive and immediate: Hawaii approved the ERA the same day, twenty-one other states approved it before the end of the year, and eight more states the following year. Yet, by 1982 the amendment lay dead, having fallen three states short of the thirty-eight states needed for ratification.

Each stage of our national development has had a distinctive form of public policy. And each has faced a core tension between the dictates of governance and the constraints of democracy. Economic or social interests, and advantage-seeking politicians, forge policies. Countervailing interests, or changing times, or the limits of state capacity see to it that those policies rarely if ever live up to the expectations of their progenitors. But then no one ever said that the American polity, to say nothing of its democratic ideal, is a neat or orderly thing.