¹ Roosevelt, Theodore, “A Confession of Faith” in The Works of Theodore Roosevelt, vol. 17 (New York, 1926), 263.Google Scholar

² A title search of the Ohio State University catalogue—one of the largest academic library collections in the country—turned up forty different books or chapters of books whose title begin with those words, compared to 397 entries found under “Constitutional Law.” Most of the forty are by scholars examining countries other than the United States, with titles such as Constitutional Politics in Eastern Europe and Constitutional Politics in Italy. Only fifteen titles deal with “constitutional politics” in the United States, and a number of these are titles of chapters embedded in comparative works or books like Constitutional Politics in Canada and the United States. A keyword search brings up eighty-six hits of separate works. Again, a large majority apply the concept to the constitutional systems of other nations or to a comparison of the U.S. system with other systems. Only thirty of the eighty-six hits were of works dealing solely with “constitutional politics” in the United States. In contrast, a keyword search of the term “constitutional law,” brought up nearly 5,700 results. Search of the electronic catalogue of the Ohio State University Libraries, http://library.ohio-state.edu (accessed May 14, 2009).

³ For a thorough criticism of the practice of approaching the Constitution as a species of ordinary law, see Griffin, Stephen M., American Constitutionalism: From Theory to Politics (Princeton, 1996).Google Scholar

⁴ Murphy, Paul L., “Time to Reclaim: The Current Challenge of American Constitutional. History,” American Historical Review 69 (Oct. 1963): 64–79CrossRefGoogle Scholar; Michael Les Benedict, “Expanding the Scope of American Constitutional History,” presentation at the Supreme Court Historical Society/University of South Carolina conference “Teaching Legal and Constitutional History,” College Park, MD, Mar. 19–21, 1999; available at www.h-net.org/~law/teaching_le-gal_history/benedict.htm#N_1_.

⁵ Sunstein, Cass, The Partial Constitution (Cambridge, MA, 1993), 8.Google Scholar

⁶ For example, Powell, Jefferson, A Community Built on Words: The Constitution in History and Politics (Chicago, 2002)CrossRefGoogle Scholar; Whittington, Keith E., Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, MA, 1999).Google Scholar

⁷ Roosevelt, , “A Confession of Faith,” 263.Google Scholar See Kramer, Larry W., The People Themselves: Popular Constitutionalism and Judicial Review (New York, 2004)Google Scholar; Tushnet, Mark V., Taking the Constitution Away from the Courts (Princeton, 1999).Google Scholar

⁸ American Political Parties and Constitutional Politics, ed. Peter W. Schramm and Bradford P. Wilson (Lanham, MD, 1993), vii.

⁹ See, for example, Harvey C. Mansfield Jr., “Political Parties and American Constitutionalism,” ibid., 2–16, esp. 10–16.

¹⁰ For my analysis of how party conflict reflected constitutional differences after the New Deal, see Benedict, Michael Les, The Blessings of Liberty: A Concise History of the Constitution of the United States, 2nd ed. (Boston, 2006), 268–432.Google Scholar

¹¹ For a theoretically sophisticated assessment of episodes of the constitutional politics surrounding the framing and ratification of the Fourteenth Amendment, see Ackerman, Bruce, We the People, vol. 2, Transformations (Cambridge, MA., 1998).Google Scholar

¹² See Kyvig, David E., Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence, KS, 1996), 188–91Google Scholar, 226–46; Foster, Gaines M., Moral Reconstruction: Christian Lobbyists and the Federal Legislation of Morality, 1865–1920 (Chapel Hill, 2002), 27–46Google Scholar, 62–64, 68–70, 107–10, 135–40; Hamburger, Philip, Separation of Church and State (Cambridge, MA, 2002), 287–334.Google Scholar

¹³ Finkelman, Paul, “Prelude to the Fourteenth Amendment: Black Legal Rights in the Antebellum North,” Rutgers Law Journal 17 (Spring/Summer 1986): 415–82Google Scholar; , Finkelman, “Race, Slavery, and Law in Antebellum Ohio” in The History of Ohio Law, ed. Benedict, Michael Les and Winkler, John F., (Athens, OH, 2004), 2:748–81Google Scholar; Gittes, Frederick M., “Paper Promises: Race and Ohio Law after 1860” in History of Ohio Law, 2:782–97Google Scholar, 800–02; Gerber, David A., Black Ohio and the Color Line, 1860–1915 (Urbana, 1976), 168–244Google Scholar; Dykstra, Robert R., Bright Radical Star: Black Freedom and White Supremacy on the Hawkeye Frontier (Ames, IA, 1993), 195–270Google Scholar; Mohr, James C., The Radical Republicans and Reform in New York during Reconstruction (Ithaca, NY, 1973), 202–70Google Scholar; Davis, Hugh, “The Pennsylvania State Equal Rights League and the Northern Black Struggle for Legal Equality, 1864–1877,” Pennsylvania Magazine of History and Biography 106 (Oct. 2002): 611–34Google Scholar; Douglas, Davison M., Jim Crow Moves North: The Battle over Northern School Segregation, 1865–1954 (New York, 2005), 61–122.Google Scholar

¹⁴ McAfee, Ward M., Religion, Race, and Reconstruction: The Public School in the Politics of the 1870s (Albany, NY, 1998)Google Scholar; Hamburger, , Separation of Church and State, 335–59Google Scholar; Jorgenson, Lloyd P., The State and the Non-Public School, 1825–1925 (Columbia, MO, 1987), 111–86.Google Scholar

¹⁵ Dubois, Ellen Carol, “Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage, and the United States Constitution, 1820–1878,” Journal of American History 74 (Dec. 1987): 836–62CrossRefGoogle Scholar; VanBurkleo, Sandra, “Belonging to the World”: Women's Rights and American Constitutional Culture (New York, 2001), 150–63Google Scholar, 168–73; Kerber, Linda K., No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York, 1998), 81–123Google Scholar; Hoff, Joan, Law, Gender, and Injustice: A Legal History of American Women (New York, 1991), 143–87.Google Scholar

¹⁶ Foster, , Moral Reconstruction, 54–68Google Scholar; Gordon, Sarah Barringer, The Mor mon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill, 2002).Google Scholar

¹⁷ On the general differences between Democratic principles and those of the Whig and Republican parties, see Silbey, Joel H., The American Political Nation, 1838–1893 (Stanford, 1991), 72–89.Google Scholar For Democratic convictions: Silbey, , A Respectable Minority: The Democratic Party in the Civil War Era, 1890–1868 (New York, 1977), 62–88Google Scholar; Magliocca, Gerald N., Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (Lawrence, KS, 2007), 7–73Google Scholar; Watson, Harry L., Liberty and Power: The Politics of Jacksonian America, rev. ed. (New York, 2006), 42–171Google Scholar; Leonard, Gerald, “Party as a ‘Political Safeguard of Federalism’: Martin Van Buren and the Constitutional Theory of Party Politics,” Rutgers Law Review 54 (Fall 2001): 221–81.Google Scholar

¹⁸ Republican Platform of 1856 in National Party Platforms, 1840–1972, comp. Johnson, Donald Bruce and Porter, Kirk H., 5th ed. (Urbana, 1973), 27–28.Google Scholar See also Magliocca, Andrew Jackson and the Constitution; Fehrenbacher, Don E., The Slaveholding Republic: An Account of the United States Government's Relations to Slavery, completed and ed. McAfee, Ward M. (New York, 2001), 295–338Google Scholar; Foner, Eric, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (New York, 1970)Google Scholar; Richards, Leonard L., The Slave Power: The Free North and Southern Domination, 1789–1860 (Baton Rouge, 2000).Google Scholar

¹⁹ Keller, Morton J., Affairs of State: Public Life in Late Nineteenth Century America (Cambridge, MA, 1977), 1–33CrossRefGoogle Scholar, 85–161; Hyman, Harold M., A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York, 1973)Google Scholar; Curry, Leonard P., Blueprint for Modern America: Nonmilitary Legislation of the First Civil War Congress (Nashville, TN, 1968)Google Scholar; Bensel, Richard Franklin, Yankee Leviathan: The Origins of Central State Authority in America, 1859–1877 (New York, 1990)Google Scholar; Calhoun, Charles W., Conceiving a New Republic: The Republican Party and the Southern Question, 1869–1900 (Lawrence, KS, 2006).Google Scholar

²⁰ Democratic Platform of 1840 in Johnson, and Porter, , National Party Platforms, 2.Google Scholar For identical restatements in succeeding platforms from 1844 through 1856, see Johnson and Porter, National Party Platforms, 3, 10, 16, 24. In the platforms of 1852 and 1854, the word “shown” was changed to “made.”

²¹ The platform of 1864 denounced the Lincoln administration for the “usurpation of extraordinary and dangerous powers not granted by the Constitution,” and declared its “aim and object” to be the preservation of the Union with “the rights of the States unimpaired.” Ibid., 34.

²² Democratic Platform of 1888, ibid., 77.

²³ Democratic Platform of 1896, ibid., 97.

²⁴ Republican Platform of 1876, ibid., 53.

²⁵ Republican Platform of 1880, ibid., 61.

²⁶ Republican Platform of 1884, ibid., 74.

²⁷ Republican Platform of 1868 (1st plank), 1872 (3rd and 12th planks), and 1876 (3rd plank) in Johnson, and Porter, , National Party Platforms, 39Google Scholar, 47, 53–54. The quotation is from the 1876 platform.

²⁸ Republican platforms of 1880, 1884, 1888, and 1892 in Johnson, and Porter, , National Party Platforms, 62Google Scholar, 74, 80, 93–94. It may be significant, however, that the Republican Platform of 1896 demanded that every citizen “be allowed to cast one free and unrestricted ballot” without pledging legislation to enforce the right. Ibid., 109.

²⁹ Republican Platform of 1880 in Johnson, and Porter, , National Party Platforms, 63.Google Scholar

³⁰ Republican Platform of 1884, ibid., 72–73.

³¹ Republican Platform of 1888, ibid., 82.

³² Republican Platform of 1892, ibid., 93.

³³ Democratic Platform of 1892, ibid., 87.

³⁴ Democratic Platform of 1888, ibid., 78.

³⁵ U.S. Constitution, art. 1, sec. 4, authorizes Congress “to make or alter” state regulations governing “the Times, Places and Manner” of congressional elections. In Ex parte Siebold, 100 U.S. 371 (1880), and Ex parte Yarborough, 110 U.S. 651 (1884), the Supreme Court held that these provisions gave Congress complete authority over the subject.

³⁶ Congressional Record (CR), 51st Cong., 1st sess. (June 26, 1890), 6561, 6564. The observation of “prolonged applause” is on 6567.

³⁷ William W. Rice (R-Mass.), CR, 48th Cong., 2nd sess. (Dec. 8, 1884), 97.

³⁸ CR, 51st Cong., 2nd sess. (Mar. 25, 1890), 2600.

³⁹ CR, 51st Cong, 1st sess. (Apr. 8, 1890), 3145–53.

⁴⁰ Sen. Warner Miller (R-N.Y.), CR, 49th Cong., 1st sess. (July 17, 1886), 7073.

⁴¹ A search of FirstSearch, WorldCat List of Records, www.worldcat.org (accessed March. 15, 2009), found 43 different entries of reprinted speeches on the Oleomargarine Act.

⁴² Eustace Gibson (D-W.Va.), CR, 49th Cong., 1st sess. (May 28, 1886), 5032.

⁴³ CR, 49th Cong, 1st sess. (June 3, 1886), 5213.

⁴⁴ CR, 49th Cong, 1st sess. (July 20, 1886), 7202.

⁴⁵ Johnson, and Porter, , National Party Platforms, 87.Google Scholar

⁴⁶ McKinley, “A Protective Tariff ” in Long, John Davis, The Republican Party: Its History, Principles, and Policies (New York, 1898), 241–42.Google Scholar Long's volume was originally published in 1888 for that year's presidential campaign. It was republished regularly through 1904.

⁴⁷ The Blair Education Bill was debated at length in three Congresses. I will limit this discussion to the first effort to pass it. That debate can be followed in CR, 48th Cong., 1st sess. (Mar. 18–Apr. 8, 1884), 1999–2032, 2061–72, 2099–2112, 2145–53, 2204–15, 2242–55, 2282–92, 2329–42, 2368–76, 2460–71, 2506–16, 2534–57, 2580–98, 2629–49, 2678–2724. The Republi can Senate passed the bill, but the Democratic House never even took it up.

⁴⁸ See, for example, the criticism of Preston B. Plumb (R-Kans.): “I do not see in this any question of constitutional power, but I do see in it the most dangerous endeavor I have ever witnessed to extend the power of the Federal Government at the expense not only of the State governments but of every form of government within them.” CR, 48th Cong., 1st sess. (Mar. 20, 1884), 2103.

⁴⁹ George F. Hoar (R.-Mass.), CR, 48th Cong., 1st sess., (Apr. 5, 1884), 2645; see also Henry W. Blair (R.-N.H.), Mar. 19, 1884, 2063, and Mar. 27, 1884, 2334. While Hoar and Blair relied on the general power of the government to guard against threats to republican government, Wilkinson Call (R-Minn.), the member of the committee reporting the bill who appears to have been tasked with defending its constitutionality, linked this broad necessity to the expressly delegated power to tax and spend for “the general welfare” (art. 1, sec. 8); see CR, 48th Cong., 1st sess., (March 27, 1884), 3335–38.

⁵⁰ Charles W. Jones (D-Fla.), CR, 48th Cong., 1st sess. (Mar. 21, 1884), 2151–52; Joseph E. Brown (D-Ga.), CR, 48th Cong., 1st sess. (Mar. 25, 1884), 2248–49.

⁵¹ Augustus H. Garland (D-Ark.), CR, 48th Cong., 1st sess. (Mar. 24, 1884), 2204–05, quotation 2205. Also Joseph E. Brown (D-Ga.), Mar. 25, 1884, 2449–51; James Z. George (D-Miss.), Mar. 28, 1884, 2372–73; Eustace Gibson (D-La.), Apr. 4, 1884, 2591–94.

⁵² CR, 48th Cong., 1st sess. (Apr. 7, 1884), 2486.

⁵³ For examples, see Richard W. Coke (D-Tex.), CR, 48th Cong., 1st sess. (Mar. 24, 1884), 2707; George G. Vest (D-Mo.), Mar. 24, 1884, 2214; George H. Pendleton (D-Ohio), Apr. 5, 1884, 2535–38.

⁵⁴ Charles H. Van Wyck (R-Neb.), CR, 48th Cong., 1st sess. (Apr. 2, 1884), 2514.

⁵⁵ CR, 48th Cong., 1st sess. (Apr. 5, 1884), 2649.

⁵⁶ CR, 48th Cong., 1st sess. (Apr. 7, 1884), 2699.

⁵⁷ Ibid., 2724. Voting and paired Republicans divided 25 to 4.

⁵⁸ Ibid., 2718–19. The brief debate at the time of the vote (see pp. 2699–2706) turned on the objection that the secretary of the interior was performing an essentially judicial function. But earlier debate made the states’ rights issue clear, as did regular allusions to the coerciveness of the bill by its Democratic opponents throughout the debates.

⁵⁹ CR, 48th Cong., 1st sess. (Mar. 14, 1884), 1886–1903; (Mar. 17, 1884), 1961–74.

⁶⁰ CR, 48th Cong., 1st sess. (June 18, 1884), 5297–98. For constitutional arguments surrounding the measure, see May 27, 1884, 4554, 4561–65; June 17, 1884, 5241–42, 5245–49; June 18, 1884, 5281–91.

⁶¹ For example, Anonymous, The Money of the Constitution: The Action of the Fathers of the Republic and the Statesman of the Nation in Favor of the Free and Unlimited Coinage of Gold and Silver; A Policy Representing Prosperity vs. a Policy Producing Disaster (n.p., 1896); Enloe, Benjamin A., The Standard of Values: Gold and Silver, the Money of the Constitution—A Plea for the Double Standard; Speech of Hon. B. A. Enloe of Tennessee, in the House of Representatives, Friday, August 25, 1893 (Washington, 1893)Google Scholar; Harris, Isham G., Gold and Silver, the Money of the Constitution, the Money of the People: Speech of Hon. Isham G. Harris of Tennessee, in the Senate of the United States, Friday, September 29, 1893 (n.p., 1893)Google Scholar; Maginnis, M. N., Constitutional Money: A Plan for the Coinage of the Gold and Silver Bullion Product of the Mines of the United States (San Francisco, 1892)Google Scholar; Foote, Allen Ripley, The Money of the Constitution (New York, 1896).Google Scholar

⁶² New York Tribune, June 15, 1865, repr. in Documentary History of the Negro People, ed. Herbert Aptheker (New York, 1968), 2:537. See also Equal Suffrage: Address from the Colored Citizens of Norfolk, Va., to the People of the United States…(New Bedford, MA, 1865), repr. in Documentary History of the Negro People, 2:535–36.

⁶³ Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). The opinion of the attorney general preceded Dred Scott (1857) in finding that free black Virginians were not embraced by the term “citizens of the United States” because of the “incapacities which distinguished them from the white citizens of Virginia.” 1 Opinions of the Attorney General (1821), 507–08.

⁶⁴ For background, see Culbertson, Tom, “The Golden Age of American Political Cartoons,” Journal of the Gilded Age and Progressive Era 7 (July 2008): 277–95.CrossRefGoogle Scholar

⁶⁵ Brooklyn Young Republican Club, Young Republican Campaign Song Book, comp. Henry Camp (Brooklyn, 1888), 14.

⁶⁶ Ibid., 42.

⁶⁷ Ibid., 62.

⁶⁸ Lewllyn, Karl N., The Common Law Tradition: Deciding Appeals (Boston, 1960), 35–44.Google Scholar

⁶⁹ Newmyer, R. Kent, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge, 2001), 355.Google Scholar

⁷⁰ Texas v. White, 74 U.S. 700 (1869).

⁷¹ Ibid., 725.

⁷² Slaughterhouse Cases, 32 U.S. 36 (1873).

⁷³ For an excellent example of the contrast between the “grand style” of opinion aimed to persuade a general public, and a technical one that appears to be aimed at lawyers, compare the majority and dissenting opinions in U.S. v. Lee, 106 U.S. 196 (1882).

⁷⁴ “Although this decision did not meet the approval of four out of nine of the judges on some points on which it rested, yet public sentiment, as found in the press and in the universal acquiescence which it received, accepted it with great unanimity; and although there were intimations that in the legislative branches of the Government the opinion would be reviewed, and criticized unfavorably, no such thing has occurred in the fifteen years which have elapsed since it was delivered. And while the question of the construction of these amendments,…has often been before the Supreme Court…, no attempt to overrule or disregard this elementary decision of the effect of the three new constitutional amendments upon the relations of the State governments to the Federal Government has been made; and it may be considered now as settled.” Miller, Samuel Freeman, Lectures on the Constitution of the United States (Albany, NY, 1891), 411.Google Scholar

⁷⁵ In the debate over the Oleomargarine Bill, New York Republican senator William M. Evarts insisted that legal precedents established the constitutionality of the measure. “If it be constitutional in the eye of the law it is constitutional in the eye of the Constitution, and the Supreme Court is the judge of what is constitutional.” CR, 49th Cong., 1st sess. (July 20, 1886), 7192. Missouri's Democratic senator George G. Vest articulated the same understanding while debating the Sherman Anti-Trust Act: “We live, very fortunately, in my judgment, under a written Constitution, and we are governed by the decisions of the Supreme Court in regard to the legislative powers vested in us.” CR, 51st Cong., 1st sess. (Mar. 21, 1890), 2463.