“We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case,” the three judges from the 1st U.S. Circuit Court of Appeals in Boston.

Image courtesy Fibonacci Blue/Flickr.

The judges didn’t rule on a provision that relieves states from recognizing same-sex marriages licensed in other states.

They did rule as unconstitutional part of the law denying employment benefits to the same-sex spouse of a federal employee.

In a statement, Gay & Lesbian Advocates & Defenders (GLAD) said it also expected the legal fight over DOMA to continue.

“We expect the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives to appeal the decision. BLAG stepped forward to defend DOMA from equal protection challenges after President Obama declared he would no longer defend the law in response to GLAD’s challenges,” the group said on its website.

For more analysis on DOMA:

Constitution Check: Must gay marriage be a fundamental right in order to exist?Is the Defense of Marriage Act constitutional?
Constitution Check: Has the president endorsed a constitutional right to same-sex marriage?

Stevens, 92, told an audience in Arkansas the Obama was correct in his evaluation of the controversial Citizens United v. Federal Election Commission decision, which allows corporations to spend unlimited amounts on national political campaigns.

Stevens was one of the dissenting justices in the 5-4 Supreme Court decision in 2010 that has changed the nature of this year’s presidential campaign. He has vocally opposed the decision since it was handed down.

Stevens was nominated to the Supreme Court by a Republican, President Gerald Ford.

Obama stirred the pot himself in a State of the Union speech in 2010 when he publicly rebuked the Supreme Court for the Citizens United decision–as the nine justices sat in front of him.

Justice Samuel Alito mouthed the response “not true” when Obama said the court would allow foreign corporations to fund U.S. elections.

Also on Wednesday, Politico said the brothers David and Charles Koch are leading a campaign to raise $400 million to oppose Obama in the general election.

Politico said the money would be spent on a county-by-county basis.

In response, the Obama campaign is reaching out to more supporters for more money.

The bitter feelings between President Obama and the Supreme Court surfaced again in April after the president questioned the court’s motives after its hearing of the health-care reform case in late March.

President Obama said it would be an “unprecedented, extraordinary” step for the Supreme Court to overturn his health-care law. Administration officials were then told by a U.S. circuit court to explain the president’s remarks.

With the Supreme Court set to rule on the Affordable Care Act in late June, a third skirmish between the president and the Court seems possible, if any parts of the law are struck down.

The debate is still out on how the justices will rule on how the Affordable Care Act interacts with Commerce Clause, and if the ACA unconstitutionally forces consumers to buy a product (in this case, health insurance).

The key justice is Anthony Kennedy, who has questioned the ability of Congress to force consumers to buy a product .

An analysis in Time magazine showcases Kennedy’s extended remarks, along with those of Chief Justice John Roberts, making the case that the Court’s decision on health care is too close to call.

But a partial or total rejection of the Affordable Care Act remains a distinct possibility, and it would provide a third public showdown between the president and the Supreme Court, this time in the middle of a contested presidential election.

Upcoming Event

On June 6, Jack Balkin of Yale University and Randy Barnett of Georgetown University, moderated by John Hockenberry, will be live at the National Constitution Center to explore the commerce clause and the upcoming Supreme Court decision on health care. Click here for event details.

Scott Bomboy is the editor-in-chief of Constitution Daily.

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Constitutional law professor Sanford Levinson says our Constitution is badly in need of an overhaul. Lyle Denniston evaluates the need for more conversation—or maybe a national convention.

The statement at issue:

“Critics across the spectrum call the American political system dysfunctional, even pathological.  What they don’t mention, though, is the role of the Constitution itself in generating the pathology. … Most contemporary Americans … have seemingly lost their capacity for thinking seriously about the extent to which the Constitution serves us well.  Instead, the Constitution is enveloped in near religious veneration. … We are long overdue for a serious discussion about [the Constitution’s] own role in creating the depressed (and depressing) state of American politics.”

—University of Texas constitutional law professor Sanford Levinson, in an op-ed column May 29 in The New York Times, headlined;“Our Imbecilic Constitution: Why is our government so dysfunctional?  Look back to 1787.”

We checked the Constitution, and…

A national constitution that has lasted 225 years, with only 27 formal amendments, very likely has done a fairly good job of making and maintaining a functional government.  One does not have to hold the American Constitution in religious awe to believe that.  The fact that it has survived multiple crises of governance—some of which no other system of government might have weathered—probably says a good deal about its workability.

But if one has followed the career of Professor Levinson, a creative but severe critic of the Constitution as presently written, one might be tempted to conclude that the need for reforming the basic document has never been more urgent.

Indeed, his just-published column in The New York Times is a very short version of his insistent call for what he himself calls “radical reform.” His arguments are laid out in full in two books: Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), and, more recently, Framed: America’s 51 Constitutions and the Crisis of Governance.

The “crisis of governance,” for Levinson, is plain to see in contemporary America’s deeply polarized (and frequently gridlocked) political order.  Indeed, the introduction to the book Framed is a chronicle of the recent breakdowns in that order.

What is unique about Levinson’s scholarship, though, is that he traces most of the nation’s political ills to his view that the very structures created by the Constitution—and by many state constitutions, too—are the real source of dysfunctional government.

His core aspiration is to further democratize those structures—for example, by getting rid of the Electoral College and its indirect method of electing presidents, ending equal representation of the states in the Senate, limiting the presidential veto of legislation, and taking away unlimited terms (that is, life tenure) for Supreme Court justices.  He also favors transferring some national legislative power back to the people, so that they could enact laws by referendum (as they can in many states).

The professor is under no illusion that any of these reforms will come about through Article V of the present Constitution, governing how the document is to be amended.  So, perhaps his most radical idea is to summon a new constitutional convention, to go over the Constitution structure by structure and change what is needed to make government work again.

To critics who have said that such a convention would be a renegade gathering, hell-bent on destroying the current Constitution and particularly taking away civil rights, Levinson basically responds that he has a good deal more faith in the people to be sober self-governors.  (In fact, Levinson is a pioneering member of the academic movement to promote a new form of “popular constitutionalism.”  In much over-simplified terms, that involves a commitment to more democratic control of what the Constitution means, displacing—at least in part—judicial review.)

There are many other explanations, competing with Levinson’s, for any “crisis of governance” that may now be threatening American’s public order.  Not least of these is the change in political attitudes away from pragmatic government based on compromise and toward subservience to “pure” forms of ideological commitment.

And that trend has been reinforced by the highly developed capacity to craft political representation schemes so that the system maximizes incumbency, guarantees partisan outcomes, and minimizes ballot competition.

One also should not overlook the way political campaigns are financed these days, and whether that has geared the system toward more control by Big Money interests pursuing their own agendas without regard to their popular support.

Levinson, though, is surely right about one thing: it is time for a serious—and respectful—national conversation about the nature of America’s political order, and the role—if any—that the 225-year-old Constitution might have played in generating or tolerating the system that now exists.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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We asked author Glenn T. Stanton and GLAD staff attorney Janson Wu one simple question: What’s the long-term impact of the president’s support of same-sex marriage beyond the current election year?

The issue received even more prominence on Thursday, when a federal appeals court overturned part of the Defense of Marriage Act (DOMA), with the understanding that the U.S. Supreme Court needed to decide if DOMA is constitutional.

Here are links to the two opinion pieces. We’d like your feedback in the Facebook comments area at the bottom of this page.

Opinion: The future of same-sex marriage (by Glenn T. Stanton)

http://blog.constitutioncenter.org/?p=15198

Opinion: Long-term meaning in Obama’s same-sex statement (by Janson Wu)

http://blog.constitutioncenter.org/?p=15195

In this opinion piece, author Glenn T. Stanton from offers his take on President Obama’s changing stances on the issue and what he sees as the lack of long-term momentum behind the issue.

In a companion piece, Janson Wu, staff attorney at Gay & Lesbian Advocates & Defenders, examines the long-range impact on the LGBT community.

President Obama is now the first American president to endorse the idea of males marrying males and females marrying females. This is a game-changer to be sure.

Never has a U.S. president endorsed such a truly radical restructuring of marriage and family, two dramatically essential social institutions.

He says they will strengthen the family, yet multiple research studies reveal that no family formation changes we’ve made with the family over the last 50 years have succeeded in any way in strengthening the family or improving the lot of children. None. Yet, our president is sure this one will.

But his has been a tangled story on this issue.

When running for the Illinois State Senate in 1996, Obama stated, “I favor legalizing same-sex marriages”. Less than a month earlier, he assured voters he supported same-sex marriage as “a basic human right.”

But when running for the U.S. Senate on a much larger stage, his position became one of opposition. And in the 2008 presidential race, he said “I believe that marriage is between a man and a woman. For me, as a Christian, it is also a sacred union.”

So what is the long-term impact of President Obama’s new stance in support of gay marriage? Well that is difficult to answer because we can’t really be sure what he believes. After all, he has an election coming up and elections have tended to create varying positions for him.

But to be truthful, it seems the President has been the only one unaware of what his position really is. Those who truly believed his position was “evolving” were no doubt few.

For a President’s influence to be significant and long-lasting, he must have a strong, consistent position of moral and legal conviction. This appears not to be the case here. Additionally, the president was forced into his announcement, needing to clarify the conflicting messages from his vice president disagreeing with the boss and David Axelrod disagreeing with the vice president.

An announcement under such conditions is not what clear moral leadership is made of. And what do we make of his statement that, as he puts it, access to “a basic human right” should be left up to each state to decide?

For all the talk of President Obama as our first “gay President” he has not struck a very consistent nor clear tone on this issue. It seems gay marriage proponents are just happy he said the words.

As one who has paid very close attention to his issue for the last 10 years, there is no part of me that believes gay marriage is inevitable.

The Americans whose opinion really counts in a democracy – those who actually vote – have spoken on this issue with a strong and consistent voice. That conviction has not been slipping.

Yes, young people are shown to favor marriage redefinition at higher rates, but one of the defining marks of being young is having the luxury of a more liberal idealism. But the young get older. They get married, they have babies, mortgages, jobs, responsibilities. And these things change them. This is the trajectory of every generation.

Look who came to the White House as the world-changing hippies moved into adulthood: Ronald Reagan.

Certainly the flower children did not propel him to the Oval Office, but a few did and the rest could not prevent his landing there. What seems inevitable in one age often fails to become so in the next.

I think this will be true of the current effort to androgenize marriage and parenting. A few more states could pass it, but it will not become widespread or federalized. Regardless of what the President says today.

Glenn T. Stanton is the author of five books on various aspects of the marriage and parenting, the two most recent: Secure Daughters Confident Sons, How Parents Guide Their Children into Authentic Masculinity and Femininity (Multnomah, 2011) and The Ring Makes All the Difference: The Hidden Consequences of Cohabitation and the Strong Benefits of Marriage, (Moody, 2011). For more information, go to www.glenntstanton.com.

In this opinion piece, Janson Wu, staff attorney at Gay & Lesbian Advocates & Defenders, examines the long-range impact on the LGBT community.

In a companion piece, author Glenn T. Stanton offers his take on President Obama’s changing stances on same-sex marriage and what he sees as the lack of long-term momentum behind the issue.

Like many individuals who realized they were gay at a young age, I could not envision a future being gay.

For a while, I thought it was a phase that would pass – like acne or 9^th grade. When it did not, I forced myself to believe that I could live my life as straight, get married, have kids, and it would be okay.

I certainly never imagined that two decades later, I would be a staff attorney at Gay & Lesbian Advocates & Defenders (GLAD), one of the premier legal organizations fighting discrimination against LGBT individuals and those living with HIV.

With President Barack Obama’s announcement this month of his support for allowing same-sex couples to marry, young people today will grow up in a new world – one where their highest leader affirms their self-worth and dignity as individuals and as part of a community. Thanks to his words, LGBT youth can better envision a healthy, happy, and productive future that can include marriage to the person that they love.

I don’t think it was an accident that President Obama referenced young people and his own daughters when explaining his “evolution” on marriage While some may criticize his focus on youth as crass politicking to an important demographic, they miss the long-term impact his words will have on LGBT youth as they grow into adults.

Not only have youth led his evolution, but overall progress on marriage equality and LGBT rights will pay forward with the next generation.

There is obviously much more work to be done. The federal Defense of Marriage Act (DOMA) remains one of the only federal laws on the books that explicitly targets a group of individuals for discrimination.

GLAD has two cases challenging the constitutionality of DOMA, one of which was case decided at the First Circuit Court of Appeals in Boston. (Editor’s note: On May 31^st, that court overturned part of DOMA and said the U.S. Supreme Court should decide the case.)

The recent passage of a constitutional amendment in North Carolina prohibiting marriage rights for same-sex couples adds to the tally of 30 states that have inserted discrimination into their constitutions (compared to only six states and the District of Columbia that provide marriage rights to same-sex couples).

This November, three more states will defend against similar measures, and Maine, where GLAD is working closely with many other organizations, will decide for the first time an affirmative referendum to win the freedom to marry for same-sex couples.

Moreover, the work to ensure a more hopeful future for our youth is unfinished, despite President Obama’s historic words.

LGBT youth are still attacked in schools, at home, and in the public sphere, with every hateful comment on the Internet about the worth of LGBT individuals. Yet, with at least half of Americans supporting marriage equality (almost double from 1996),  our country is moving in the right direction, largely thanks to young people who increasingly value their fellow citizens for who they are, including for being lesbian, gay, bisexual, or transgender.

Imagine what America will look like when an entire generation of LGBT youth grow into adulthood – loved, secure, and affirmed for who they are, without exception

Janson Wu is a staff attorney at Gay & Lesbian Advocates & Defenders in Boston. He is a graduate of both Harvard University and Harvard Law School and was named a 2011 “Best LGBT Lawyer Under 40” by the National LGBT Bar Association.

Alexander Hamilton v. Aaron Burr

The most famous of all political feuds was one of the earliest. Alexander Hamilton was a Founding Father, while Aaron Burr was the vice president of the United States.

The Burr-Hamilton Duel

The bad blood between the two men might have dated back to the Revolutionary War, when Hamilton received a field promotion, while Burr didn’t. Burr then defeated Hamilton’s father-in-law in a U.S. Senate election. Then Hamilton helped defeat Burr in the 1800 presidential election after Thomas Jefferson and Burr tied in the general presidential election.

After Hamilton made insulting remarks about Burr that were published, the two men agreed to terms for a duel.

On July 11, 1804, Burr fatally wounded Hamilton in their duel. The vice president wasn’t tried, but he was charged with murder in two states.

Aaron Burr v. Thomas Jefferson

That’s right, Burr again–the man was a prolific feuder.

President Thomas Jefferson wasn’t fond of Burr before the Hamilton duel, and he had already dropped Burr from the presidential ticket in 1804.

Burr eventually became involved in some schemes in the Deep South that involved Spain and Mexico and Burr’s possession of a large amount of land.

In 1807, Jefferson ordered Burr’s arrest on treason charges. But in a trial supervised by the chief justice of the Supreme Court, John Marshall, Burr was found not guilty.

Burr then became a non-factor in American politics, while Jefferson remained irate at Marshall.

Andrew Jackson v. John Quincy Adams

In one of the nastiest electoral feuds in U.S. history, both men used hand-to-hand campaign tactics that would shock modern political operatives.

Adams defeated Jackson in a House runoff election in 1824, even though Jackson had received much more of the popular and electoral vote.

The rematch in 1828 was especially bitter, as Adams operatives claimed Jackson was a bigamist and called his wife a prostitute, while Jackson’s campaign said Adams had offered women as concubines as part of his diplomatic career.

Jackson won the election, but his wife died of a heart attack before his inauguration. He blamed her death on the Adams campaign. Both men wouldn’t speak to each other at Jackson’s inauguration.

Preston Brooks v. Charles Sumner

In an attack that further divided the North and South, Preston Brooks attacked Charles Sumner on the U.S. Senate floor with a metal-tipped cane in 1856, leaving Sumner seriously injured. Brooks received a $300 fine.

The incident started when Senator Sumner, an abolitionist, went on a two-day rant on the Senate floor after an incident in Kansas.

Sumner made fun of Brooks’ relative, Senator Andrew Butler, who had suffered from a stroke, and he used language that compared the South’s use of slavery to prostitution.

An irate Representative Brooks sought advice from fellow South Carolina Representative  Laurence M. Keitt, who talked Brooks out of a duel. Instead, Brooks confronted Sumner on a nearly empty Senate floor, and beat the defenseless Sumner to a pulp as Keitt stood by with a drawn gun.

Sumner survived but didn’t return to the Senate for three years. Brooks was later challenged to a duel by another politician but backed out at the last moment. Brooks died in 1857 from the croup.

James Buchanan v. Stephen Douglas

A long-forgotten feud that led to Abraham Lincoln’s election as president in 1860 was the split between President James Buchanan and Senator Stephen Douglas in the run-up to the election.

Buchanan long had presidential ambitions, but he inherited a nation in 1856 that was on the path to Civil War. He defeated Douglas for the Democratic presidential nomination prior to the election.

Douglas was an esteemed member of the Senate who defeated Lincoln in the 1858 Senate campaign in Illinois.

Douglas was also a powerful member of Congress, but he split from Buchanan over issues related to the Kansas situation.

The bitter feud between Douglas (as the leader of the northern states of the Democratic party) and Buchanan (who was favored by the South) opened the door for the little-known Lincoln to become president.

The South knew where Lincoln stood, and the succession began as Buchanan ended his presidency.

Grover Cleveland v. James Blaine

James Blaine was a top leader in the Republican party who had twice been denied the presidential nomination, and forced out as secretary of state in 1881, after President James Garfield died.

Grover Cleveland was a national political newcomer from New York with a reputation as a reformer.

But as their parties’ respective nominees in 1884, Blaine and Cleveland engaged in the most mudslinging since the 1828 Jackson-Adams election.

The Democrats called Blaine “the continental liar” after documents surfaced that seemed to tie Blaine to railroad interests.

The Republicans dug up claims that Cleveland had a child out of wedlock, and used the slogan, “Ma, Ma, where’s my Pa?” to target Cleveland.

Cleveland’s supporters countered with claims that Blaine, like Andrew Jackson, might not have been legally married when he had his first child.

The final straw was when a Blaine supporter insulted Catholics just before the election–costing Blaine the vote in New York City and the margin of victory in a narrow race.

Cleveland probably had the last laugh: once he ascended to the presidency, his supporters responded to the Republican’s taunt of “Ma, Ma, where’s my Pa?”–”Gone to the White House. Ha! Ha! Ha!”

FDR v. Supreme Court

The president had feuded with the Supreme Court before, with the struggles between Jefferson and Marshall, and Lincoln and Roger Taney, as prime examples.

But what about a president who sought to change the number of Supreme Court justices to ensure a favorable outcome in cases?

In the 1930s, President Franklin D. Roosevelt tried to “pack the court,” as his opponents claimed, as FDR battled to enact widespread government programs.

The court had ruled against several Roosevelt initiatives and the president used a radio fireside chat in 1937 to tell the public about a bill to give him the power to expand the court.

The measure met a lot of public opposition, and then Roosevelt ran into barriers among his own Democratic Party in the U.S. Senate.

When Senate Majority Leader Joseph T. Robinson died, Roosevelt lost his chief supporter of the Judicial Procedures Reform Bill of 1937.

Eventually, Roosevelt got his friendly court, as most of the justices he inherited in 1933 retired or passed away.

George Bush v. Al Gore

The 2000 general election was settled by a Supreme Court decision involving a small number of votes in Florida.

Gore and Bush had been locked in a tight race that actually started as the Bill Clinton impeachment case was winding down in 1999.

The Republicans campaigned as agents of social and political change in Washington, while Gore touted his experience.

But in many ways, the bitterest part of the campaign happened after he polls closed, when both sides discovered that Florida’s 25 electoral votes would decide the election, and all the votes there hadn’t been counted yet.

At one point, TV networks declared both candidates as winners of the election. Gore conceded to Bush and then retracted his concession.

After a series of legal appeals, the original vote count in Florida stood and on December 12, the Supreme Court overturned a Florida ruling permitting a wider recount.

Bush had taken Florida by a little over 500 votes, but it was enough to win the election.

A New York Times analysis right after the election showed that Bush would have taken Florida under the recount rules proposed by the Gore camp.

But in subsequent years, there were reports of some scenarios that might have given Gore the 25 electoral votes he needed.

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Watson sculpture in Boone, N.C.

Watson died Tuesday at the age of 89 in North Carolina after a brief illness.

But Watson’s story isn’t in his passing, it is in what he left behind culturally as an oral historian of songs that told rural America’s story.

Watson’s repertoire included a lot of bluegrass, country, and folk standards, including a few classics that Watson restored from dusty old records.

After touring the country for more than four decades, Watson influenced several generations of musicians with his guitar-playing style.

He often played to healthy-sized audiences at colleges and smaller venues, and at folk festivals (including his own family’s festival in North Carolina).

Audiences left his shows not only with the joy of being entertained, but also with a brief music history lesson.

To understand Watson’s influence, you need to understand his own history.

Watson was born in 1923, grew up in rural North Carolina and was blind since the age of one.

He went to school, got married, had two children, and played music locally in rockabilly and country swing bands in the 1950s.

Musicologist Ralph Rinzler was in Watson’s part of North Carolina in 1960 looking for Clarence “Tom” Ashley, a regional music star from the 1920s and 1930s he was hoping to record.

Rinzler found Ashley and Ashley arranged for Watson to accompany him–on electric guitar.

Rinzler asked Watson to play acoustic guitar and Watson balked, because he didn’t have one.

A day later, Rinzler returned, and Watson had borrowed an acoustic guitar, and he was accompanying Ashley.

When Rinzler passed a banjo to Watson, he picked out a version of “Tom Dooley” that Rinzler had never heard.

Watson told Rinzler it was his family’s version, and that many of the “lost” songs that Rinzler talked about from the region were still played widely in North Carolina and Tennessee.

Watson took the advice of Rinzler and others, switched to folk music, and listened to old records to expand his repertoire, to add to the songs he heard growing up.

So in his late 30s, Watson started a career as a nationally known traditional musician.

His career took off after an appearance at the Newport Folk Festival and a guest role on the Nitty Gritty Dirt Band’s “Will The Circle Be Unbroken?” album.

Watson toured with his son Merle until Merle’s death in 1985, and he also benefited from the release of his record catalog digitally.

He resumed touring after his son’s death, and Watson also made high-profile appearances with the biggest names in his field.

A typical Watson concert would include a few standards that he arranged for his guitar style, some gospel songs, a few folk standards, early country classics from Jimmie Rodgers and the Carter Family, and a few old, obscure songs.

For example, Watson played “The White House Blues,” a song from the 1920s that recounted the assassination of President William McKinley. Or he would play a version of “The House Of The Rising Sun.”

He also played songs that were originally recorded by country legend Merle Travis (who Watson named his son after) Travis heard his songs growing up in Kentucky’s coal region in the depression.

Watson’s son, Merle, added songs from Mississippi John Hurt, another “lost” artist discovered during the 1960s folk revival.

Watson actually thrived after the folk movement faded out in the late 1960s.

He had built up repeat audiences using history as the backdrop for his performances, and he toured widely (and recorded often) with his son, and usually a third musician.

Recently, Watson had been performing with his grandson on guitar, but he scaled back his live shows in the past few years.

Watson was also involved in “MerleFest,” an annual music festival and musicians’ camp in North Carolina named for his son.

But perhaps Watson’s greatest legacy was his chance to preserve the musical heritage of his region.

Watson’s shows, like those of musical storytellers from Pete Seeger to Bruce Springsteen, had a sense of purpose, bolstered by Watson setting up songs with a few stories about people long forgotten, until they were remembered in song.

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Scott Bomboy is the editor-in-chief of Constitution Daily.

This week marks another milestone in the civil-rights movement: the Supreme Court decision known as Brown II.

On April 17, 1954, in Brown v. Board of Education, the nation’s highest court declared segregation in public schools to be unconstitutional.

The Warren Court

Chief Justice Earl Warren, writing for a unanimous bench in Brown I, held that “in the field of public education, the doctrine of ‘separate but equal’ has no place.  Separate educational facilities are inherently unequal.”

The first Brown verdict was no doubt momentous.  But it was also largely symbolic.  It would take more than a year for the Supreme Court to determine how to implement this new integrationist mandate.

It was 57 years ago tomorrow that the same court delivered a decision that would chart the course of public education in the United States for more than half a century.

On May 31, 1955, the last day of the spring term, the Warren bench issued its judgment in Brown II, placing the practice of desegregation in the hands of local governments.

“At stake is the personal interest of the plaintiffs in admission to public school as soon as practicable on a nondiscriminatory basis,” Chief Justice Earl Warren wrote.  “To effectuate this interest may call for the elimination of a variety of obstacles in making the transition.”

These obstacles arise out of the specific local conditions of each individual district, Warren continued.  And the responsibility for administering such policies falls on individual school authorities.

As such, the decision concluded, the question of relief should be determined by the local courts that heard the original questions–and it is the responsibility of those courts to ensure that remedies are afforded “with all deliberate speed.”

These four words set into motion decades of upheaval, as communities around the country struggled to negotiate this federal mandate toward desegregation.

Some elected to close down public schools, to avoid the prospect of integration.

In Prince Edward County, Virgina, the entire school district shut its doors in September 1959.  For the next five years–until the U.S. Supreme Court declared the practice unconstitutional in 1964–the county provided students with tuition grants to attend local private schools, all of which maintained whites-only admissions policies.

Others developed “freedom of choice” plans.  Here, students were automatically enrolled in their previous schools but were given the option of requesting a transfer to another school within the given district or county.

In theory this meant that families could choose where to send their children to school.  In practice, however, this choice was impaired by complicated transfer applications, geographic restrictions, and threats of violence and intimidation.

In New Kent County, Virgina, during the three years that the district’s freedom of choice plan was in effect, there were no white students who chose to attend previously all-black schools, and only 15 percent of African American students–115 children in all–successfully enrolled in previously all-white schools.

More broadly, in the decade following the Brown decision, only 1.2 percent of black students in the 11 of the former Confederate states attended schools with white students.

As legal scholar Charles Ogletree writes, “Whereas Brown I made possible the institutional equality first promised in 1776 with the Declaration of Independence… and again in 1865 with the ratification of the 13th and 14th Amendments, Brown II created the method and manner in which America would resist the mandate of the equality ideal.  If Brown I made integration a legal imperative, Brown II, with its decision to proceed “with all deliberate speed,” ensured that the imperative was not implemented as a social imperative.”

The localization of desegregation had the effect of creating a vastly uneven educational landscape in the United States in the latter half of the 20th century, a legacy with which the nation continues to grapple today.

Abigail Perkiss is an assistant professor of history at Kean University in Union, New Jersey, and a fellow at the Kean University Center for History, Politics and Policy.

For further reading, see:

Charles Ogletree, All Deliberate Speed: Reflection on the first half century of Brown v. Board of Education. New York: W.W. Norton and Company, 2004.

William Gordon, “The Implementation of Desegregation Plans Since Brown,” Journal of Negro Education, Vol. 63 n. 6, summer 1994.

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The Hatfields in 1897.

The decades-long feud is getting the Hollywood treatment this week as Kevin Costner stars in a mini-series about the bloodshed between the families from West Virginia and Kentucky.

But the event that led to a trial of eight Hatfield clan members was a high-court decision in 1888 that allowed Kentucky to try the men and execute one family member.

The Kentucky trial ended the bloodshed part of the feud, which saw 12 people killed between 1865 and 1890. (The feud started in earnest after the 1878 dispute over the pig.)

The case of Mahon v. Justice (1888) centered on Plyant Mahon, a Hatfield family member who was forcibly taken from West Virginia for trial in Pike County, Kentucky, the home area of the McCoys.

Mahon was related to the Hatfields by marriage. He took part in a raid on the home of Randolph McCoy, the head of the McCoy family. Two of Randolph McCoy’s children died in the incident.

A posse from Kentucky delivered Mahon and seven others to the jail from West Virginia.

Link: Read the Supreme Court decision

The court acknowledged that Mahon was taken “without warrant or other legal process, arrested by a body of armed men from Kentucky, and by force and against his will, conveyed out of the State.”

There were writs in Kentucky seeking Mahon’s arrest and presentment at court, but the governor of West Virginia wanted Mahon returned to his home state, claiming he wasn’t given due process.

Abner Justice was the Pike County jailer and named in the case.

A divided Supreme Court ruled 7-2 that Mahon could remain in custody and face trial in Kentucky, even though he was taken against his will from West Virginia. (The ruling applied to the other men taken by the posse.)

“Whatever effect may be given by the state court to the illegal mode in which the defendant was brought from another state, no right, secured under the Constitution or laws of the United States, was violated by his arrest in Kentucky, and imprisonment there, upon the indictments found against him for murder in that state,” said Associate Justice Stephen Johnson Field.

Associate Justice Joseph Philo Bradley wrote the dissenting opinion.

“In my opinion, the writ of habeas corpus was properly issued, and the prisoner, Mahon, should have been discharged, and permitted to return to West Virginia. He was kidnapped, and carried into Kentucky in plain violation of the Constitution of the United States, and is detained there in continued violation thereof,” Bradley said.

In 1890, Ellison Mounts was executed in Kentucky for his role in the McCoy killings. He was one of the men captured along with Mahon.

The feud started to abate with Mounts’ execution.

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Scott Bomboy is the editor-in-chief of Constitution Daily.