Announcing Virtual Supreme Court Competition Finalists and A Call for Judges

The brief writing round of the Harlan Institute - ConSource Virtual Supreme Court Competition is now complete, and four outstanding student groups are set to participate in oral argument in front of our Virtual Supreme Court in the case of National Labor Relations Board v. Noel Canning Corporation.

Our semi-finalists will participate in a preliminary oral argument round on April 25th. The match-ups for the preliminary round are:

Jacob and Luke from Del Valle High School in Dell Valle, TX, representing the petitioners


Michelle and Uma from Frisco CTE in Frisco, TX, representing the respondents.


Peter and Dante from Wicomico High School in Salisbury, MD, representing the petitioners


Jason and Jennifer from Del Valle High School in Dell Valle, TX, representing the respondents.

On April 28th, we will host the championship oral argument round, which will determine which team is crowned the Solicitors General of the Virtual Supreme Court Competition. The winners will be flown to Washington, D.C. for ConSource’s Sixth Annual Capital City Constitution Day Celebration.

We are currently looking for lawyers, judges, or legal academics to judge the oral argument rounds of the Virtual Supreme Court competition. Oral argument will be conducted via Google Hangout, so no travel is required. If you’re interested in judging the final round of the competition, please email ConSource Executive Director Julie Silverbrook at

Women and Jury Service: A Brief History

By ConSource Staff

The U.S. Constitution guarantees that all federal criminal cases except, impeachment cases, “shall be by Jury.”[1] The Sixth Amendment guarantees criminal defendants “enjoy the right” to an “impartial jury.” On the civil side, the Seventh Amendment guarantees “the right of trial by jury.”[2] The right and obligation to serve on a jury, however, was not always available to women.

Early America

In Early America, women were ineligible for jury service. William Blackstone described women as ineligible because “women [suffered] from a ‘defect of sex.’”[3] Judith Sargent Murray, a political playwright in early America, recognized the disparity in equity. Writing to a friend, she recognized that women “cannot legally be tried by [their] Peers, for men are not [their] Peers, and yet upon [men’s] breath [women’s] guilt or innocence depends.”[4]

In 1879, the Supreme Court struck down a West Virginia law that discriminated against African-American’s jury service in Strauder v. West Virginia.[5] Despite the expansion of civic obligations for African Americans, the decision explicitly allowed state laws to restrict jury service “to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications.”[6] Linda K. Kerber, professor of history at the University of Iowa, concludes that Strauder v. West Virginia would be used to justify women’s exclusion and exemption from jury service “[f]or nearly a century.’[7]

Twentieth Century America

With the twentieth century came the ratification of the Nineteenth Amendment and women’s suffrage. The women’s movement and the ratification of the Nineteenth Amendment lent momentum to women’s status in society and “jury service sometimes followed on [the Nineteenth Amendment’s] heels.”[8]

Even in states where women were not excluded from jury service, women were often exempted. In 1947, the Supreme Court upheld women’s exemption from the obligation of jury service in Fay v. New York.[9] Exemption meant that “a woman drawn may serve or not, as she chooses.”[10]

In Fay, the defendant challenged the procedures used to shrink the jury pool from the general to the special panel. Before a potential juror was selected for the special panel, the court would subpoena the person “for personal appearance and [to testify] under oath as to [his or her] qualification and fitness.”[11] Women were not subpoenaed to be examined unless they “[volunteered] or [were] suggested as willing to serve by other women or by other organizations.”[12]

The Court accepted two justifications for women being exempted from jury service. First, the Court noted that “the law of New York gives to women the privilege to serve but does not impose service as a duty.”[13] Second, the Court accepted New York’s justification that it was “impractical to compel large numbers of women, who have an absolute exemption, to come to the clerk’s office for examination since they so generally assert their exemption.”[14]

The Supreme Court again affirmed the woman’s exemption in 1961 in Hoyt v. Florida.[15] Similar to the New York statute, Florida required women to volunteer for jury service in order to serve.[16] The Court found that the exemption was constitutional because “[d]espite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life” and it is not unreasonable for Florida to “conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.”[17] 

Women were not allowed to serve on juries with the same qualifications as men until 1975.[18] In 1975, the Supreme Court held that automatically exempting women unless they act affirmatively violates a defendant’s Sixth Amendment right to an impartial jury “drawn from a fair cross section of the community.”[19]  The Court held that “it is no longer tenable to hold that women as a class may be excluded to given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male.”[20]

[1] U.S. Const. art. III § 2.

[2] U.S. Const. amendment VII.

[3] Linda K. Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship 130 (New York: Hill and Wang, 1998) (quoting William Blackstone).

[4] Id. at 131 (quoting Judith Sargent Murray).

[5] Strauder v. West Virginia, 100 U.S. 303 (1879).

[6] Id. at 310.

[7] Kerber, supra note 3, at 133.

[8] Id. at 137.

[9] Fay v. New York, 332 U.S. 261 (1947); Marissa N. Batt, Just Verdicts? A Prosecutor Extols Jury Service for Women, Ms. Magazine, (last visited March 5, 2014).

[10] Fay v. New York, 332 U.S. at 267.

[11] Id.

[12] Id.

[13] Id. at 277.

[14] Id.

[15] Hoyt v. Florida, 368 U.S. 57 (1961).

[16] Id. at 61.

[17] Id. at 61-62.

[18] Taylor v. Louisiana, 419 U.S. 522 (1975).

[19] Id. at 536.

[20] Id. at 537.

Attitudes Surrounding the Drafting and Ratification of the Nineteenth Amendment

By ConSource Staff


The Nineteenth Amendment to the U.S. Constitution prohibits the United States or any state from denying or abridging the right of citizens to vote on account of sex. The Nineteenth Amendment was ratified August 18, 1920[1] when Tennessee’s legislature voted for ratification. Secretary of State Colby certified the Amendment August 26, 1920.[2]

The Nineteenth Amendment was drafted by Susan B. Anthony.[3] She modeled her draft after the Fifteenth Amendment, guaranteeing citizens the right to vote regardless of “race, color, or previous condition of servitude.”[4] Susan B Anthony and Elizabeth Cady Stanton petitioned Congress for a constitutional amendment guaranteeing women the right to vote.[5] 

Rhetoric surrounding the passage, however, demonstrates that even though women’s suffrage was successful, attitudes surrounding women’s suffrage were not universal.

Before Ratification

The women’s suffrage movement began with the 1848 Seneca Falls Convention on women’s rights. Five women, including Elizabeth Cady Stanton and Lucretia Mott, organized the Seneca Falls Convention. The Convention adjourned with the adoption of the Declaration of Sentiments. The Declaration of Sentiments endorsed 12 resolutions, including the goal of securing women’s access to the “elective franchise.”[6]

As the women’s suffrage movement gained momentum, groups organized to advocate against a constitutional amendment guaranteeing women the right to vote. The Oklahoma Association Opposed to Woman Suffrage, for example, took out an advertisement in the Tulsa Daily World stating that allowing women to vote would be discriminating against mothers and harm the family.[7]

To prevent ratification, members of the Tennessee legislature “fled the state to avoid a quorum and their associates held massive anti-suffrage rallies and attempted to convince pro-suffrage legislators to oppose ratification.”[8] Former Tennessee legislator, R.R. Sneed, remarked to The Daily Ardmoreite, that “the old timers” of the legislature were going to try to “sidetrack the issue” and that “there is a certain element in Tennessee, and in fact all the southern states who believe that the woman’s place is in the home and that she has no business mixing in politics.”[9]

After Ratification

After the Nineteenth Amendment was ratified, even legal scholars speculated about the likely societal consequences of women having the right to vote. William L. Marbury, for example, published an article in the Virginia Law Review cautioning that only “actual experience (and perhaps the experience of years) can possibly determine” whether the Nineteenth Amendment may “destroy the unity of the family, to increase the frequency of divorce, to affect injuriously the training and welfare of children, to prevent in times of national peril the enactment of those severe, sometimes cruelly severe laws necessary for the safety of the people and the State or Nation.”[10] 

Others challenged the constitutionality of the Amendment. Challengers argued that the U.S. Constitution does not allow amendments of this “character.,”[11] legislatures’ ratifications were rendered inoperative by their state constitutions,[12] and Tennessee and North Carolina’s ratifications, specifically, are invalid because they were “adopted in violation of the rules of legislative procedure.”[13]

The Supreme Court, however, dismissed all challenges quickly. The Supreme Court held that the character of the Nineteenth Amendment is of the same nature as the Fifteenth. The Fifteenth Amendment had been recognized as valid “for half a century.”[14] The Supreme Court also held that state constitutions could not prevent state legislatures from ratifying the Amendment. The Court reasoned “the function of a state Legislature in ratifying a proposed amendment to the federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the federal Constitution; and it transcends any limitations sought to be imposed by the people of a state.”[15] And finally, the Court held that the last claim rendering the Nineteenth Amendment invalid is moot because since the Amendment had been certified two other state legislatures had already ratified the Amendment.[16] 

The above attitudes and challenges to the Nineteenth Amendment demonstrate the resistance women faced when advocating for women’s suffrage. They provide examples of some of the rhetoric that existed in the early 20th century even as much of the country accepted women’s growing role in the polity.  

[1] 19th Amendment,, (last visited Feb. 28, 2014).

[2] Topics in Chronicling America – The Nineteenth Amendment, The Library of Congress, (last visited March 4, 2014).

[4] U.S. Const. amend. XV, available at (last visited March 4, 2014).

[5] Petition to Congress, December 1871, National Archives, (last visited March 4, 2014).

[6] Seneca Falls Convention begins,, (last visited March 4, 2014) (quoting the Declaration of Sentiments and Grievances).

[7] Tulsa daily world, November 03, 1918, Club News and Personals, Page 9, Image 31, available at (last visited March 4, 2014).

[8] Teaching with Documents: Woman Suffrage and the 19th Amendment, National Archives. 

[10] William L. Marbury, The Nineteenth Amendment and After, 7 The Virginia L. Rev. 1, 3 (1920).

[11] Leser v. Garnett, 258 U.S. 130, 136 (1922).

[12] Id. at 136-37.

[13] Id. at 137.

[14] Id. at 136.

[15] Id. at 137 (citing Hawke v. Smith, No. 1 253 U.S. 221, Hawke v. Smith, No. 2, 253 U.S. 231, National Prohibition Cases, 253 U.S. 350, 386).

[16] Id. at 137.

The Expatriation Act of 1907: How American Women Lost Their Citizenship Through Marriage in the Twentieth Century

By Lyndsay Maier Lujan, ConSource Women & the Constitution Project Director

National citizenship before the Civil War was largely undefined.[1] Nancy F. Cott, history professor at Harvard University, concluded that citizenship and “what rights citizenship conveyed” was also unclear.[2]Not until the ratification of the Fourteenth and Fifteenth Amendments did federal guidance exist for states.[3]Even then, however, the status of women’s citizenship remained unclear. The U.S. Constitution made clear that women were citizens, citizenship, however did not convey political rights, such as the right to vote.[4]Citizenship’s definitional ambiguity left women and women’s citizenship vulnerable.[5]

The Expatriation Act of 1868 allowed American citizens, for the first time, to disavow their citizenship. The Act detailed the requirements and “ended the common-law tradition of indelible nationality.”[6] At the same time, some legal minds saw a legislative movement toward recognizing “the husband, as the head of the family, [to be] considered its political representative, at least for the purposes of citizenship, and that the wife and minor children owe their allegiance to the same sovereign power.” [7] Britain codified this trend with the Naturalization Act of 1870.

In the early twentieth century, Congress followed Britain’s lead and enacted the Expatriation Act of 1907 that caused women to lose their American citizenship if they married foreigners. Section 3 of the Expatriation Act of 1907 states “[t]hat any American woman who married a foreigner shall take the nationality of her husband. At the termination of the marital relation she may resume her American citizenship, if abroad, by registering as an American citizen within one year with a consul of the United States, or by returning to reside in the United States, or, if residing in the United States at the termination of the marital relation, by continuing to reside therein.”[8] In other words, a female U.S. citizen lost their citizenship by marrying a non-U.S. citizen and could only regain her citizenship if the marriage ended.

Ethel C. Mackenzie challenged the Expatriation Act of 1907 in 1915 after her voter registration application was rejected because she had married a British citizen.[9] In Mackenzie v. Hare, Mackenzie challenges the law on two grounds. First, Congress exceeded its authority when enacting the Expatriation Act of 1907 because the Fourteenth Amendment to the United States Constitution gave her birthright citizenship and “[e]xpatriation is evidence[d] only by emigration, coupled with other acts indicating an intention to transfer one’s allegiance…[and] that the authority of Congress is limited to giving its consent.”[10] Secondly, she challenges that even if Congress does have the power to enact such a statute, Congress only meant the Expatriation Act of 1907 to apply to U.S. women living abroad.[11]

The Supreme Court, however, rejected both arguments and upheld the Expatriation Act of 1907. The Supreme Court agreed that the Fourteenth Amendment did give Mackenzie a right to U.S. citizenship, however, the Act did it exceed Congress’s authority because the Expatriation Act of 1907 does not divest a citizen of citizenship without consent.[12] Justice McKenna  writes, “[i]tmay be conceded that change in citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequences.”[13]

And secondly, the Court rejected Mackenzie’s argument that the act does not apply to women living in the United States. The Court finds that the language of the act is clear with no limiting language suggesting application of the law only to women abroad.[14]Justice McKenna states that despite what was said “in the debates on the bill or in the reports concerning it, preceding its enactment or during its enactment, [those debates] must give way to [the bill’s] language.

In dicta, Justice McKenna also notes that the bill essentially codifies the international common law norm, even if “much [relaxed],” of coverture and the merging of a woman’s legal identity with that of her husband’s.[15]

Linda K. Kerber, Professor of History at the University of Iowa, notes that the Expatriation Act and the Mackenzie decision created real consequences for hundreds of American women during World War I.[16] The consequences of Mackenzie v. Hare was that “hundreds of native-born women were required to register as alien enemies because of the status of the men they had married” and “millions of dollars of property from native-born women” were confiscated.[17]

Fifteen years later, after pressure from suffragists and newly enfranchised women, Congress amended portions of the Expatriation Act of 1907 in the Cable Act of 1922.[18] The relevant portions of the Cable Act of 1922 states that “the right of any woman to become a naturalized citizen of the United States shall not be denied or abridged because of her sex or because she is a married woman.”[19] The Act goes on, however, to explicitly exclude women who marry men “ineligible” for citizenship.  The Act states “any woman citizen who marries an alien ineligible to citizenship shall cease to be a citizen of the United States.”[20]

Kerber notes that even though there have been amendments extending The Cable Act, “loopholes remained.” [21] Women who married men from Asia, for example, were still subject to expatriation.[22]It wasn’t until 1934 that “women’s citizenship fully separated from marriage consequences.”[23]

The Expatriation Act of 1907 and the resulting link between women’s citizenship and marriage for 27 years shows how malleable the concept of women’s citizenship has been. Moreover, this episode in history shows us that despite the ratification of the Fourteenth and Nineteenth Amendments, neither have guaranteed full political rights for women.

[1] Nancy F. Cott, Marriage & Women’s Citizenship in the United States, 1830-1934, 5 The Am. Historical Rev., 1440, 1444 (1998).

[2] Id. at 1445.

[3] Id.

[4] Id. at 1444-45.

[5] See Id. at 1442.

[6] Id. at 1460.

[7] Cott, supra note 1, at 1460 (quoting Pequignot v. Detroit, 116 Fed. 211 (1883) at 326 (Judge Brown)).

[8] The Expatriation Act of 1907 § 3, Fifty-Ninth Congress, Sess. II. Chs. 2534, 1228-1229 (1907).

[9] Mackenzie v. Hare, 239 U.S. 299, 305-306 (1915); Linda K. Kerber, No Constitutional Right to be Ladies 41 (New York: Hill and Wang, 1998).

[10] MacKenzie, 239 U.S. at 310.

[11] Id. at 307.

[12] Id. at 311-12.

[13] Id.

[14] Id. at 307-308.

[15] Id. at 311.

[16] Kerber, supra note 9, at 42.

[17] Id.

[18] The Cables Act of 1922, Sixty-Seventh Congress, Sess. II, Chs. 409-411, 1021-22; Kerber, supra note 9, at 42.

[19] The Cables Act of 1922, Sixty-Seventh Congress, Sess. II, Chs. 409-411, 1021-22.

[20] The Cables Act of 1922, Sixty-Seventh Congress, Sess. II, Chs. 409-411, 1022.

[21] Kerber, supra note 9, at 42.

[22] See id; Cott, supra note 1, at 1467.

[23] Cott, supra note 1, at 1469.

A Brief History of the Define and Punish Piracies Clause

By Kristin Bergman, ConSource Blog Contributor

Recent prosecutions of Somali pirates have drawn attention to a lesser-invoked clause of the Constitution: the Define and Punish Piracies Clause. Found in Article I, Section 8, the Clause states: “The Congress shall have Power … To define and punish Piracies and Felonies committed on the high Seas.”[1]

Drafting and Ratification History of the Define and Punish Piracies Clause

Though it seems that the Framers spent more time debating the second half of this Clause (“To define and punish … Offences against the Law of Nations”), the Framers did dedicate time and debate to refining the language of the Define and Punish Piracies Clause.

This Clause was originally proposed as “To declare the law and punishment of piracies and felonies.”[2] The Framers initially disagreed as to the inclusion of “punishment,” concerned about the strictness of criminal law and potential for intruding on the police power of the individual states.[3] Though more than half of the representatives voted to strike the term at first, further discussion concerning the efficacy of “declare” standing alone and replacement of “declare” with “define” ultimately led to the final version, pairing “define and punish.”[4]

The Define and Punish Piracies Clause was infrequently discussed (in any substantive way) in state ratification debates. The general sentiment is articulated in the debates from Pennsylvania’s ratifying convention as Thomas McKean stated,

The next powers enumerated are those for constituting tribunals inferior to the Supreme Court, for defining and punishing piracies and offenses against the law of nations, and for declaring war, to which no objection has been made, and, I am persuaded, none can be made with reason and propriety.[5]

Nevertheless, the Clause did warrant some brief discussion in Virginia, namely over the meaning of piracies. James Madison noted: “There is a general power to provide courts to try felonies and piracies committed on the high seas. Piracy is a word which may be considered as a term of the law of nations.”[6] There is no evidence of disagreement, perhaps suggesting that this understanding of the “term of the law of nations” prevailed in the interpretation of “piracy.”

The Founding Fathers on Piracy

As in the Virginia Convention notes, Supreme Court Justice Joseph Story’s Commentaries reiterates the then widely held view that the meaning of piracy needn’t be outlined in the Constitution:

[T]hey never undertook to define, what piracies or felonies were. It was taken for granted, that these were sufficiently known and understood at the common law; and that resort might, in all such cases, be had to that law, as the recognised jurisprudence of the Union. If the clause of the constitution had been confined to piracies, there would not have been any necessity of conferring the power to define the crime, since the power to punish would necessarily be held to include the power of ascertaining and fixing the definition of the crime. Indeed, there would not seem to be the slightest reason to define the crime at all; for piracy is perfectly well known and understood in the law of nations, though it is often found defined in mere municipal codes.[7] 

This idea was also found in the earlier Federalist No. 42, though its discussion of the Define and Punish Piracies Clause predominantly focused on where the power was based and its scope. Madison wrote,

The power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations, belongs with equal propriety to the general government; and is a still greater improvement on the articles confederation… . The provision of the federal articles on the subject of piracies and felonies, extends no farther than to the establishment of courts for the trial of these offences. The definition of piracies might perhaps without inconveniency, be left to the law of nations; though a legislative definition of them, is found in most municipal codes.[8]

 This emphasized that although the Clause established national power with respect to piracy, this power was not unlimited in scope, making it more palatable. This delegation of power to the federal government even came up in one of Brutus’s anti-federalist tracts, likely written by Robert Yates. [9] Though the papers as a whole opposed the ratification of the Constitution, Brutus VII’s general concern that the protection of the community is not intended to be entrusted solely in the federal government’s hands is balanced by a recognition and seeming acceptance that “this system commits to the general government the protection and defence of the community … against piracies and felonies on the high seas.”[10]

Key Supreme Court Cases Interpreting the Clause

Today, piracy is controlled by statute, providing: “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”[11] Though there has not been much piracy litigation to begin with, nearly all piracy cases have been determined with reference to this statute and its predecessors.[12] The main Supreme Court case dealing with piracy, however, dealt with the Define and Punish Piracies Clause in tandem with this piracy statute’s predecessor. In an 1820 decision written by Justice Story, the Court in United States v. Smith upheld a conviction for piracy under the 1819 iteration of the statute.[13] In discussing Congress’s power to enact such a statute, the Court held,

To define piracies, in the sense of the Constitution, is merely to enumerate the crimes which shall constitute piracy; and this may be done either by a reference to crimes having a technical name, and determinate extent, or by enumerating the acts in detail, upon which the punishment is inflicted. [14]

As such, defining by reference to the sufficiently precise law of nations and setting the punishment as the death penalty was appropriate. By this understanding, the Court held that it was constitutional to conclude that “robbery, or forcible depredations’ upon the sea, animo furandi, is piracy.”[15] This understanding persists today.

[1] U.S. Const. art. I, § 8.

[2] James Madison, Notes of the Constitutional Convention (August 17, 1787), available at

[3] Id.

[4] Id.

[5] Alexander J. Dallas, Notes of the Pennsylvania Ratification Convention (November 28, 1787), available at

[6] James Madison in the Virginia Convention (June 20, 1788), available at

[7] Joseph Story, Commentaries on the Constitution of the United States (1833), available at

[8] The Federalist No. 42 (James Madison), available at

[9] Brutus VII (June 12, 1789), available at

[10] Id.

[11] 18 U.S.C. § 1651.

[12] See James L. Lenoir, Piracy Cases in the Supreme Court, 25 Am. Inst. Crim. L. & Criminology 532 (1934).

[13] United States v. Smith, 18 U.S. 153 (1820). The statute provided, “that if any person or persons whatsoever, shall, upon the high seas, commit the crime of piracy, as defined by the law of nations, and such offender or offenders shall be brought into, or found in the United States, every such offender or offenders shall, upon conviction thereof, &c. be punished with death.” See id.

[14] See id.

[15] See id.

A Brief History of the Bankruptcy Clause

By Kristin Bergman, ConSource Blogger

Though the Bankruptcy Clause does not receive as much attention as, say, Congress’s powers under the Commerce Clause, the Founding Fathers were hardly silent on the Clause’s meaning and it remains relevant today. Falling in the list of Congress’s powers in Article I, Section 8, the Bankruptcy Clause reads: “The Congress shall have Power … To establish … uniform Laws on the subject of Bankruptcies throughout the United States… .”[1]

Drafting and Ratification of the Bankruptcy Clause

Under the Articles of Confederation, individual states alone controlled debtor-creditor relations.[2] That is to say, state law governed the situations in which one party was unable to pay a monetary debt to another, including the resolution of that debt.  As a result, state laws were very diverse, often favored debtors in their own state to the detriment of out-of-state creditors, and sometimes even conflicted with one another.[3] From the need for uniformity and interest in developing commerce came the Bankruptcy Clause.

The Clause is first mentioned during the Constitutional Convention on August 29, 1797. Madison’s notes recognize that Mr. Pinckney suggested discussion of the congressional power “[t]o establish uniform laws upon the subject of bankruptcies, and respecting the damages arising on the protest of foreign bills of exchange.”[4]

Though the clause ended up paired with the Naturalization Clause,[5] the Bankruptcy Clause remained nearly identical in its final form, changing just “upon” to “on.” In terms of more substantive discussion, those at the convention considered whether to depart from England’s criminal punishments:

Mr. Sherman observed that Bankruptcies were in some cases punishable with death by the laws of England— & He did not chuse to grant a power by which that might be done here.

Mr Govr Morris said this was an extensive & delicate subject. He would agree to it because he saw no danger of abuse of the power by the Legislature of the U— S.[6]

Ultimately, this consideration did not lead to any changes in the language of the Clause, which was approved by nine delegates at the convention. Only Connecticut voted in the negative, likely concerned about its own state law.[7]

The Bankruptcy Clause was infrequently discussed during state ratification debates. When it did come up, however, states were primarily concerned over the matter of state rights. In New York, for example, the ratification convention debates twice highlighted “That the power of Congress to pass uniform laws concerning bankruptcy, shall only extend to merchants and other traders, and that the States respectively may pass laws for the relief of other insolvent debtors.”[8]—emphasizing the limited scope of the Clause.

The Founding Fathers on Bankruptcy

In Federalist No. 42, James Madison provides some insight into how the Framers viewed the Bankruptcy clause: 

The power of establishing uniform laws of bankruptcy, is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question.[9]

According to Professor Stephen Lubben, there were two competing conceptions of the Bankruptcy Clause: (1) as a part of a larger federalization effort, particularly of commerce, and (2) as being limited to uniformity over insolvency, leaving states the power to enact bankruptcy legislation applying to debtors within the state.[10] From Hamilton and Madison we find evidence of this first interpretation, while state actors favored the latter.[11]

We also see these competing understandings in the writings of Abraham Baldwin just one year before the first federal bankruptcy act was enacted. 

But it is insisted on, said Mr. B., by some gentlemen, that as the power to pass uniform laws on the subject of bankruptcy is expressly given to Congress by the Constitution, it is their duty to do it; and some go as far as to say that it is not proper for the States to legislate on that subject. He thought there was no great weight in that argument. Congress not having passed such a law for these ten years past, and the States having legislated upon it in their own way, is a sufficient proof that that has not been the understanding of the Constitution.[12]

Key Early Supreme Court Cases Interpreting the Clause

The first federal bankruptcy law, the Bankruptcy Act of 1800, may only have lasted a few years, but the Bankruptcy Clause was the source of authority for several congressional acts dealing with bankruptcy.[13] Though bankruptcy law is primarily handled by statute, the Supreme Court has dedicated some time to interpreting the Bankruptcy Clause. Here are a few cases highlighting the Supreme Court’s approach in interpreting this Clause.

  • Sturges v. Crowninshield (1819):[14] In the first major bankruptcy law case before the Supreme Court, the Court dealt with whether states were precluded from passing their own bankruptcy laws.[15] Though ultimately decided based on the Contracts Clause, the Court held that federal power over bankruptcy was not exclusive, while suggesting in dicta that in the case of conflict federal and state statutes on the matter, the state statute would be preempted.[16]
  • Ogden v. Saunders (1827):[17] Sturges didn’t completely resolve the issue of exclusivity and supremacy, and so it returned to the Court less than a decade later.[18] The Court held that the bankruptcy power given to Congress to exercise is not exclusive, so long as states do not legislate in conflict with federal law.[19]
  • Hanover National Bank v. Moyses (1902):[20] In this case, the Court reviewed the Bankruptcy Act of 1898.[21] The Court recognized that Congress’s plenary power over bankruptcies allow it to provide for more than just traders to file for bankruptcy. Consider the textual uniformity requirement, the Court held that only geographical uniformity was necessary, not necessarily “personal” uniformity.[22]

[1] U.S. Const. art. I, § 8.

[2] See F. Regis Noel, A History of the Bankruptcy Clause of Constitution of the United States of America (1918).

[3] See id.

[4] James Madison, Notes of the Constitutional Convention (August 29, 1787), available at

[5] U.S. Const. art. I, § 8 (“The Congress shall have Power To … establish an uniform Rule of Naturalization”).

[6] James Madison, Notes of the Constitutional Convention (September 3, 1787), available at

[7] See id.; F. Regis Noel, A History of the Bankruptcy Clause of Constitution of the United States of America (1918).

[8] NY Ratification Convention Debates and Proceedings (July 19, 1788), available at; NY Ratification Convention Debates and Proceedings (July 25, 1788), available at

[9] The Federalist No. 42 (James Madison), available at

[10] Stephen Lubben, The Bankruptcy Clause, 64 Case W. Res. L. Rev. (forthcoming 2014), available at

[11] See id.

[12] Abraham Baldwin, Abraham Baldwin in the House of Representatives (January 15, 1799),

[13] National Archives, Federal Court Records: A Select Catalog of National Archives Mircofilm Publications (1987),

[14] Sturges v. Crowinshield, 17 U.S. 122 (1819).

[15] Id.

[16] Id.

[17] Ogden v. Saunders, 25 U.S. 213 (1827).

[18] Id.

[19] Id.

[20] Hanover National Bank v. Moyses, 186 U.S. 181 (1902).

[21] Id.

[22] Id.

“He Shall from Time to Time:” A Brief History of the State of the Union Address

By Kristin Bergman, ConSource Blogger

The State of the Union address is hardly a recent phenomenon; it dates back to the ratification of the Constitution, and the President has addressed Congress nearly every year since. Article II of the U.S. Constitution, in the State of the Union and Recommendation Clauses, calls for the President to “from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.”[1]

In early constitutional debates, the State of the Union Clause is rather absent. As Alexander Hamilton noted in The Federalist No. 77, “no objection has been made to this class of authorities; nor could they possibly admit of any.”[2] Additionally, we find no particular reference to this Clause in James Madison’s Notes of the Constitutional Convention.[3]

George Washington delivered the first State of the Union address, originally referred to as the “President’s Annual Message to Congress,” on January 8, 1790 before a joint session of Congress sitting in New York City (the provisional capital at the time).[4] Emphasizing his pride in the nation and embracing cooperation between branches, Washington said,

I embrace with great satisfaction the opportunity which now presents itself of congratulating you on the present favorable prospects of our public affairs… . The welfare of our country is the great object to which our cares and efforts ought to be directed, and I shall derive great satisfaction from a cooperation with you in the pleasing though arduous task of insuring to our fellow citizens the blessings which they have a right to expect from a free, efficient and equal government.[5]

The broad language of the State of the Union Clause allows much room for interpreting the form of the address, its length and timing, the scope of the audience, and more. Whether spoken or written seemed to be the main object of contention during the Early Republic. Though Washington’s addresses (as well as those by John Adams) were delivered in person, Thomas Jefferson changed this practice.[6] Jefferson considered the oral recitation too similar to the English Speech from the Throne.[7] Reflecting years later in a letter to Martin Van Buren, Jefferson referred to this as “the pompous cavalcade to the State house on a meeting of Congress, the formal speech from the throne.”[8] Still, the written form did not prevent Jefferson from invoking many of the same themes of cooperation presented in Washington’s first address, ones that continue to resonate today. In concluding his first address, Jefferson wrote,

These, fellow citizens, are the matters respecting the state of the nation which I have thought of importance to be submitted to your consideration at this time… I am happy in this opportunity of committing the arduous affairs of our Government to the collected wisdom of the Union. Nothing shall be wanting on my part to inform as far as in my power the legislative judgment, nor to carry that judgment into faithful execution.[9]

This tradition of a written address continued until Woodrow Wilson returned to a public address in 1913.[10] In the last decade, we have seen the most changes to the presentation of the address. The address is now called by a name more faithful to the Constitution: the State of the Union (dating to FDR).[11] It is typically held in late January or early February before a joint session of Congress.[12] The address is now broadcast live in the evening, and the broadcast is often followed by a response by a member of the opposing political party.[13]

[1] U.S. Const. Art. II, § 3.

[2] The Federalist No. 43 (Alexander Hamilton), available at

[3] See Vasan Kesavan & J. Gregory Sidak, The Legislator-In-Chief, 44 Wm. & Mary L. Rev. 1 (2002).

[4] George Washington, First Annual Message to Congress on the State of the Union, Jan. 8, 1790, available at The American Presidency Project,

[5] Id.

[6] See Thomas Jefferson, First Annual Message, Dec. 8, 1801, available at The American Presidency Project,

[7] See Thomas Jefferson, Letter to Martin Van Buren (June 29, 1824), available at

[8] Id.

[9] Thomas Jefferson, First Annual Message, Dec. 8, 1801, available at The American Presidency Project,

[10] Colleen J. Shogan & Thomas H. Neale, The President’s State of the Union Address: Tradition, Function, and Policy Implications (2012), available at

[11] See id.

[12] See id.

[13] See id.

The Text and History of the Patent and Copyright Clause of the U.S. Constitution

*By Kristin Bergman, ConSource Blogger

Much of intellectual property law as we know it today is statutory. However, though rarely cited, both patent and copyright law can be traced back to the Patent and Copyright Clause (also known as the Intellectual Property Clause, Progress Clause, and Science and Arts Clause) of the U.S. Constitution. Under this Clause, Congress has the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[1] Though it may seem unusual to our modern understanding of the language, “science” in fact referred to the broad spread of knowledge (and therefore promoted copyright law), while the “useful Arts” meant the work of artisans, which we now think of as manufacturing and technology (hence patent law).[2]

Drafting and Ratification of the Patent and Copyright Clause

During the Constitutional Convention on August 18, 1787, three proposals were put forth to protect intellectual property—two by James Madison and one by Charles Pinckney.

Pinckney’s proposal, which focused on copyright protection, stated “To secure to Authors exclusive rights for a certain time.”[3] Particular to this proposal was the “exclusive” language, which made its way into the final clause. Madison, in turn, had two proposed clauses, one for copyright and one for patents. The former resembles Pinckney’s proposal, though it may be read more narrowly: “To secure to literary authors their copyrights for a limited time.”[4] Madison’s other proposed clause was the only proposed language that relates to invention. He suggested adding: “To encourage by premiums & provisions, the advancement of useful knowledge and discoveries.”[5]

The Committee of Eleven, better known as the Committee of Detail, combined and edited these proposals and put forth a new, joint Patent and Copyright Clause on September 5.[6] The proposed language read, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[7] This language was approved unanimously, without debate, and remains the language we see included in the Constitution as ratified.[8]

When the Constitution was sent to the states for ratification, the Patent and Copyright Clause in particular was only addressed in two states’ conventions: Pennsylvania and North Carolina.[9] In Pennsylvania, commentary emphasized the necessity of national recognition of copyright protection by Congress rather than a single state’s protection.[10] In a similarly pro-ratification comment in response to free speech concerns, one proponent in North Carolina noted the long history of copyright protection in England and the importance of such protection in the creation of many valuable writings.[11] Aside from these limited discussions, as also seen at the Constitutional Convention, this Clause was not a point of contention.[12]

The Founding Fathers on Intellectual Property

The idea of constitutional protection for intellectual property was generally accepted by the founding fathers. As already mentioned, lack of debate suggests it was not a point of contention, though there is some evidence that the founders exhibited some skepticism over intellectual property rights. 

In the Federalist Papers, James Madison defends the Clause briefly and simply, stating:

The copyright of authors has been solemnly adjudged in Great Britain to be a right at common law. The right to useful inventions, seems with equal reason to belong to the inventors. The public good fully coincides in both cases, with the claims of individuals.[13] 

As he was likely not anticipating the critical reception of this Clause, Madison dedicates a single paragraph (out of all of the Federalist Papers) to address the Patent and Copyright Clause. Considered one of the miscellaneous powers, he notes that “[t]he utility of this power will scarcely be questioned.”[14] Nevertheless, consistent with the rest of Federalist No. 43, Madison emphasizes logic and public good to make this provision as palatable as possible

Despite general acceptance, there was some hesitancy to protect intellectual property, perhaps best seen in Thomas Jefferson’s writings. In a letter in 1813, Jefferson wrote:

Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it… . That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.[15]

Though statutory requirements for intellectual property protection would later address some of Jefferson’s concerns, this concern remains alive in critics of intellectual property protection (particularly protection that is long in duration).

Madison and Jefferson also engaged in discussion about the potential dangers of granting monopolies. Both agreed that monopolies are a great nuisance, yet, perhaps uncomfortably, concluded that they may be appropriate to encourage intellectual property development. In a letter to Jefferson, Madison asked, “But is it clear that as encouragements to literary works and ingenious discoveries, [monopolies] are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases the right to the public to abolish the privilege at a price to be specified in the grant of it?”[16] Jefferson replied to this concern, stating, “Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding—years but for no longer term and no other purpose.”[17] Essentially, the two sought to limit the scope and duration of protection (as was later accomplished by the Copyright Act) while still recognizing the importance of granting a temporary monopoly to incentivize creation.

Key Supreme Court Cases Interpreting the Clause

In 1790, the Copyright Act and Patent Act were enacted by Congress.[18] Unsurprisingly, then, much litigation over intellectual property law over the last few centuries has been a matter of statutory interpretation. However, that is not to say that the Supreme Court has been silent over matters of constitutional interpretation, occasionally addressing the Patent and Copyright Clause’s text and history to resolve intellectual property controversies. These cases highlight the Supreme Court’s approach in interpreting this Clause.

  • Burrow-Giles Lithographic Co. v. Sarony (1884):[19] The Supreme Court extended copyright protection to photographs in this copyright infringement case in part by focusing on the language of the Clause and the Framers’ understanding of copyright protection. Rather than interpreting “writings” or “author” narrowly, the Court adopted an understanding of “author” as “originator,” and found “writings” to include many tangible forms “by which the ideas in the mind of the author are given visible expression.”[20]
  • In Re Trade-Mark Cases (1879):[21] In these consolidated cases, Congress attempted to regulate trademarks under the Patent and Copyright Clause. However, as the Court noted, “Any attempt … to identify the essential characteristics of a trade-mark with inventions and discoveries in the arts and sciences, or with the writings of authors, will show that the effort is surrounded with insurmountable difficulties.” [22] As trademarks ordinarily have no relation to invention or discovery—they grow out of considerable use and are not the result of fruits of intellectual labor and originality—the Court held that they cannot be authorized under the Patent and Copyright Clause. [23]
  • Graham v. John Deere Co. (1966):[24] Though decided nearly two centuries after the Constitution was ratified, the Supreme Court emphasized a return to the Clause’s stated purpose in this patent infringement case. After providing background on the early history and policy behind the United States’ approach to patent law, the Court reaffirmed that the patent system must “promote the Progress of … useful Arts,” and therefore may only protect inventions which are new, useful, and promote human knowledge—consistent with Jefferson’s view of social utilitarianism.[25] The Court used this conclusion to affirm the statutory nonobvious subject matter requirement for patent protection.[26]
  • Eldred v. Ashcroft (2003):[27] In this relatively recent case, the Court reviewed Congress’s extension of existing copyright terms by twenty more years (such that the duration of copyright protection would reach nearly five times that which was extended in the 1790 Act).[28] The Court held this did not violate the “limited Times” prescription of the Patent and Copyright Clause, noting that the Framers understood “limited” as we do today: “confined within certain bounds, restrained, or circumscribed.”[29] The Court also asserted its limited role in interpreting the means by which the Clause should be enacted, stating, “it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.”[30]

[1] U.S. Const. art. I, § 8, cl. 8, available at

[2] See Malla Pollack, What Is Congress Supposed to Promote? Defining ‘Progress’ in Article I, Section 8, Clause 8 of the U.S. Constitution, or Introducing the Progress Clause, 80 Neb. L. Rev. 754 (2002).

[3] James Madison, Notes of the Constitutional Convention (August 18, 1787), ¶ 17, available at

[4] Id. at ¶ 8.

[5] Id. at ¶ 10.

[6] James Madison, Notes of the Constitutional Convention (September 5, 1787), available at

[7] Id. at ¶ 7.

[8] Id. at ¶ 19; U.S. Const. art. I, § 8, cl. 8.

[9] See Edward C. Walterscheid, Inherent or Created Rights: Early Views on the Intellectual Property Clause, 19 Hamline L. Rev. 81 (1995).

[10] See id.

[11] See id.

[12] See id.

[13] The Federalist No. 43 (James Madison), available at

[14] Id.

[15] Thomas Jefferson, Letter to Isaac McPherson (Aug. 13, 1813), available at

[16] James Madison, Letter to Thomas Jefferson (Oct. 17, 1788), available at

[17] Thomas Jefferson, Letter to James Madison (Aug. 28„ 1789), available at

[18] Copyright Act of 1790, 1 Stat. 124, available at; Patent Act of 1790, 1 Stat. 109, available at‎.

[19] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).

[20] Id.

[21] In Re Trade-Mark Cases, 100 U.S. 82 (1879).

[22] Id.

[23] Id.

[24] Graham v. John Deere Co., 383 U.S. 1 (1966).

[25] Id.

[26] Id.

[27] Eldred v. Ashcroft, 537 U.S. 186 (2003).

[28] Id.

[29] Id.

[30] Id.

Coverture Laws in the Colonial, Revolutionary and Constitutional Periods

By Lyndsay Maier Lujan, ConSource Women & the Constitution Program Director

This post is part of ConSource’s Women & the Constitution Project. ConSource’s Women & the Constitution Project is bringing to the fore the work of our nation’s Founding Mothers and their intellectual progeny. The Project will trace the myriad ways women have shaped American political thought and government from the first rumblings of revolution to the modern era.

To be able to understand women’s contributions to American political thought, it is important to understand the legal, social, and cultural environment in which they lived. During the colonial, revolutionary, and constitutional eras, women were subject to the legal fiction of coverture. Coverture is the legal fiction where in marriage “the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.”[1] The practice of coverture was adopted into American law from the English common law.[2] Under the practice of coverture, the married woman’s husband controls any of the woman’s property and her body.[3] The fiction was justified for women’s “protection and benefit.”[4]

While women who married were confined within the institutional mandates of coverture,”[5] unmarried women could sue, own her earnings, buy and sell property, and “will her assets to her heirs.”[6]

Legally, married women in the revolutionary era “could not make contracts or be sued.”[7] Further, they were immune from most criminal acts and a married woman’s husband would be responsible for the acts and debts incurred by his wife.[8]

Despite the suspension of a woman’s existence during marriage, doctrines and rules developed to adapt to the realities of everyday life. One of the adaptations was the “doctrine of necessaries.” The doctrine of necessaries is the obligation that a husband must provide his wife with the necessaries of living. Under the doctrine of necessaries “a woman could buy necessary items from a third party on her husband’s credit, and if the husband refused to pay the third party, the third party could sue the husband for the debt.”[9] Therefore, women were able to make purchases and order day-to-day goods for the family.

Consequences of Coverture

As noted above, women under the law had no independent legal identity. As a result, women were also not being allowed to vote and had no ability “to behave independently in the political and economic realms.”[10]

Moreover, the existence of coverture affirmed a divide in spheres between the sexes. “Men were responsible for all public activities and relationships outside the family, and women were responsible for the household and the children and the private world of the home.”[11] During the colonial period, relations with England “were not considered women’s concerns in the mid-eighteenth century. Social customs dictated that women defer to men in many areas of life, and one of these was politics.”[12]

Exceptions to this norm were rare but did exist. Some women of the time, such as Mercy Otis Warren, did have an independent and prominent political identity. Mercy Otis Warren wrote propaganda pieces during the revolutionary period criticizing British rule and encouraging support for the rebellion.[13] Other women demonstrated political agency through their purchasing power, even if it was under their husband’s name.[14]

In the Revolutionary period, “[a]n important way in which women and teenage girls expressed their opposition to English policies was through participation in spinning bees…Their goal was the production of homespun - cloth that was made in America rather than imported from England. By participating in a spinning bee, and by working long hours at home spinning, weaving, knitting, and sewing, American women were helping to make the colonies independent of English goods.”[15]

Coverture in the colonial, revolutionary, and constitutional stripped married women of their legal identity and affirmed women’s place in the domestic sphere. This legal framework significantly impacts the ability of historians and scholars to track the political activity of women in the early republic. As part of the Women & the Constitution project, ConSource researchers will explore the correspondences and diaries of prominent women in the revolutionary and constitutional periods in order to gain a fuller sense of the range of politically and constitutionally significant writings and activities of women in the early republic.

[1] Blackstone Commentaries, Of Husband and Wife, available at (last visited Jan. 6, 2014).

[2] Linda K. Kerber, No Constitutional Rights to be Ladies 15 (New York: Hill & Wang, 1998).

[3] Kerber, supra note 2, at 11.

[4] Blackstone Commentaries, Of Husband and Wife, available at (last visited Jan. 6, 2013).

[5] Carol Berkin, Revolutionary Mothers 5 (New York: Random House, 2005).

[6] Id. at 5-6.

[7] Catherine Allgor, Coverture - The Word You Probably Don’t Know But Should, (last visited Jan. 6, 2014).

[8] Kerber, supra note 2, at 14.

[9] Jill Elaine Hasday, The Canon of Family Law, Public Law and Legal Theory Working Paper No. 77, 23 (Oct. 2004), available at (last visited Dec. 10, 2013).

[10] Gender and Politics: Revolutionary-era American society limited women’s actions to the domestic or private sphere, (last visited Jan. 14, 2014).

[11] Claudia Zaher, When a Woman’s Marital Status Determined Her Legal Status: A Research Guide on the Common Law Doctrine of Coverture, 94 Law Library Journal 459, 461 (2002).

[12] Nancy F. Cott, No Small Courage: A History of the Women in the United States 133

[13] Julia Christensen, The Political Authority of Mercy Otis Warren, (last visited Jan. 14, 2014).

[14] T.H. Breen, Marketplace of Revolution: How Consumer Politics Shaped American Independence 211 (New York: Oxford University Press, 2004).

[15] Cott, supra note 13 at 135.

A Note From Our Friends at the National Archives at Philadelphia
National History Day Philadelphia Needs Your Help!

Please help National History Day Philadelphia support students by providing projects supplies! 

Hundreds of middle- and high-school students will be competing in the National History Day Philadelphia regional competition in March. Help us give them the project supplies they need to succeed. So far, we’ve raised over $1,226 — but we need your help to reach our goal of $6,000 by February 2 for the supplies that many of the schools cannot provide.  This campaign is in addition to our annual scholarship drive.  It is needed because of the much publicized challenges our schools are facing this year!

National History Day puts students in charge of their education.  Students choose their topics and project type, while NHD Philly guides them through a year-long process that empowers them with vital skills in planning, critical thinking, evaluation and analysis, and presentation. At the end, students have skills that enable them to be ready for the workforce and for college. National History Day kids consistently outperform their peers — even in non-Humanities subjects such as science, technology, engineering and math (STEM).

Please support our online fundraising campaign: . You can also help spread the word by liking our post and sharing this it with your friends and networks.

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