Introduction

Abstract

Introduction Melvin I. Urofsky As usual, we have a potpourri of subjects for you to enjoy in this issue, and we also have contributions from what might be called two generations of constitutional and legal history scholars. David W. Levy is my exact contempo­ rary. We started out together as instructors at the Ohio State University in the 1960s and worked together for many years as the co­ editors of seven volumes of Louis D. Brandeis Letters. He is the official historian of the University of Oklahoma, from which he recently retired as David Ross Boyd Profes­ sor of History. Last year he asked me to read the manuscript of a new book he had written (tasks that we have done for each other for many years now), and while wearing my reader’s cap, my hat as editor of this journal is always near at hand. I suggested an article, and what caught my attention—and what I thought would interest our readers—is the reaction of the University in the McLaurin case. In civil rights litigation, we often hear about what the plaintiffs went through, and often it was indeed terrible, but sometimes the defendant’s actions are also impacted. Several years ago we ran an article by the attorney who argued the case for Kansas in Brown v. Board ofEducation. We think you will find this article just as interesting. Louis Fisher is another old friend. For many years, he was a fixture in the Law Division of the Library of Congress, where he answered legal questions from senators and representatives on a variety of matters. He has retired from that position and is now a scholar in residence at the Constitution Project as well as a visiting professor at the College of William and Mary law school. He is now also free to file amicus briefs in his own name with the High Court. For many years, Louis Fisher has been arguing— and correctly—that Charles Evans Hughes’s famous dictum “the Constitution is what the Supreme Court says it is” is wrong. Our constitutional heritage is developed by input not only from the judiciary, but from Congress, the executive branch, academia, and the people themselves. In this arti­ cle, he takes on the notion that the courts have been the great protector of individual rights and argues that Congress should be given far more credit than it has in the past. D. Grier Stephenson, Jr., the Charles A. Dana Professor of Government Emeritus at Franklin & Marshall College, has been writ­ ing “The Judicial Bookshelf” since before I took over as editor, and that is a long time. I always mention how grateful I am that he 6 JOURNAL OF SUPREME COURT HISTORY keeps working along with me, but it is true. It would be hard to think of the journal without him. Turning to younger scholars, Timothy R. Johnson is the Morse Alumni Distinguished Professor at the University of Minnesota, Rachel Houston is a doctoral candidate there, and Amanda C. Bryan is a newly minted Ph.D. who is an assistant professor at Loy­ ola University in Chicago. They have been working a mine that will keep Court scholars busy for years to come, Justice Harry Blackmun ’s extra-judicial notes that he scribbled in green pencil through his 30+ years in the Marble Palace. During oral argument, Justice Blackmun took copious notes on the case in standard black pencil, but he also wrote about a lot of other things that were on his mind in green. In this article, we get a taste of what the Justice was thinking about. James A. Todd is an assistant professor ofpolitics at Palm Beach Atlantic University, and his subject is one of the great cases of the nineteenth century, Cooley v. Board of Wardens (1852). In that case the Taney Court essentially said that while the federal government under the Commerce Clause has power, if the national government has not acted, then the states are free to do so—even in interstate matters. While the Jacksonian Justices were more concerned with state than with federal powers, Professor Todd shows that the growing nationalism after the Civil War...