The Warren Court.

The decision of Brown v. Board of Education of Topeka in 1954 is perhaps the most famous all of all Supreme Court cases. It overturned the equally far-reaching decision of Plessy v. Ferguson in 1896.

In the Plessy case,  the court decided by a 7-1 margin that “separate but equal” public facilities could be provided to different racial groups.

In his majority opinion, Justice Henry Billings Brown pointed to schools as an example of the legality of segregation.

“The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced,” he said.

The lone dissenter, Justice John Marshall Harlan, wrote, “In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case (referencing the controversial 1857 decision about slavery).”

“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens,” he added.

The Plessy decision institutionalized Jim Crow laws that allowed racial segregation to continue for decades.

By 1951, the issue was heading back to the court for review, and the outlook didn’t look promising for the forces that had united to overturn the Plessy decision. The NAACP and their attorney, Thurgood Marshall, had been in court for years and had won some isolated victories.

The Brown case was actually a combination of five cases involving segregation at public schools in Kansas, Delaware, Virginia, South Carolina, and the District of Columbia.

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The justices who first heard the case in 1953 were divided. Chief Justice Fred Vinson, from Kentucky, wasn’t convinced that Plessy should be overturned on constitutional grounds. Several other justices were undecided and possibly leaning toward upholding Plessy. Four justices seemed to be committed to overturning Plessy, but five votes were needed, and there were concerns about a divided court.

Another concern was about how the Brown decision, if it overturned segregation, could be enforced in 19 states and the District of Columbia without widespread violence.

The court decided in June 1953 to hear more arguments in the case later in the year. But in September 1953, Chief Justice Vinson died suddenly from a heart attack. President Dwight Eisenhower had promised the next Supreme Court opening to the politically powerful Earl Warren from California, who was favored desegregation.

Warren was appointed chief justice and the court met in a private session in December to discuss the Brown case. Two justices took notes of the meeting, which indicate that Warren made a powerful opening statement that made it clear the court was heading toward the end of segregation.

Warren talked about the abilities of Marshall and the legal team from the NAACP.

“If oral argument proved anything, the arguments of Negro counsel proved that they are not inferior. I don’t see how we can continue in this day and age to set one group apart from the rest and say that they are not entitled to exactly the same treatment as all others,” Warren said.

“At present, my instincts and tentative feelings would lead me to say that in these cases we should abolish, in a tolerant way, the practice of segregation in public schools,” he said.

Warren also made it clear he would work with the justices to find “unanimity and uniformity, even if we have some differences.”

Two justices—Robert Jackson and Stanley Reed—had concerns about the Supreme Court making a decision that would be better left to Congress. There were also questions about Marshall’s arguments, which referred much to the sociological evidence about the damage caused by segregation (and not as much to prior case law).

On May 17, 1954, Warren read the final decision: The Supreme Court was unanimous in its decision that segregation must end. In its next session, it would tackle the issue of how that would happen.

“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal,” Warren said.

The announcement made international headlines and more than a few newspapers saw the decision as vindication for Justice Harlan’s dissent in the 1896 Plessy case.

Not long after the Brown decision, in October 1954, Justice Robert Jackson died and President Eisenhower picked his replacement from the Second Circuit Court: Judge John Marshall Harlan, the grandson and namesake of the famous dissenter.

But for the non-celebrities whose mug shots and arrest records are online, it’s no fun at all. A lawsuit was just filed that seeks to change the obligations of electronic news media to take down those reports.

Lorraine Martin, a Connecticut nurse, was arrested in 2010 along with her sons when the police raided her home and found a small amount of marijuana. The charges against Martin were later dropped and the official criminal record was purged.

But Martin has since been unable to find a job, and she claims it is because when you type her name into a search engine, articles like the one entitled “Mother and Sons Charged with Drug Offenses” are still available through online news outlets.

So Martin has filed a lawsuit against the local news outlets for herself and on behalf of others like her who were arrested, but whose criminal record have since been expunged. The suit claims that the online media outlets defame them by continuing to make available content about the story.

The press is protected by the First Amendment of the Constitution, which states in pertinent part: “Congress shall make no law … abridging the freedom of speech, or of the press …”

But there are some forms of speech that are not protected by the First Amendment, notably, speech that is defamatory.

In order to be defamatory (and therefore not protected by the First Amendment), the communication must be a false statement of fact made to a third party that harms a person’s reputation or ability to earn a living.

The novel question presented in Ms. Martin’s class-action is this: Can an article written about an incident that accurately describes an event that did take place be false if the record of that event was later expunged?

In other words, does the truth change into a falsehood over time such that what happened after the fact makes the event described at the time defamatory?
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And if it does, then does the online news agency have an obligation to take down content that hurts a person’s reputation or ability to earn a living if the subsequent events make it clear that the arrest should not have happened or where the prosecutor has, by expunging the record, shown that the person who was arrested for a crime should not continue to be judged on the basis of her arrest for it?

The power of the Internet to continue to perpetuate past events makes rehabilitating one’s reputation difficult in cyberspace—and in real life. It is for this reason that states are beginning to limit online access to certain legal records.

For now, the class-action lawsuit will be an uphill battle involving the novel issue of whether truth becomes false and then defamatory. What do you think? Should newspapers or other online outlets be forced to take down descriptions of arrests, mug shots, or other reports that show a person who was arrested but whose record was later expunged? Let us know!

Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

The statements at issue:

“The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate. The ultimate result of the NLRB’s intrusion would be to create hostile work environments where none exist.”

– Jay Timmons, president and CEO of the National Association of Manufacturers, in a statement quoted in The New York Times May 8 in response to a federal appeals court decision striking down a requirement by the National Labor Relations Board that some 6 million companies display in their workplaces a poster telling workers of their rights to unionize.

“In today’s workplace, employers are required to display posters explaining wage and hour rights, health and safety and discrimination laws, even emergency escape routes. The circuit court’s rulings suggests that courts should strike down hundreds of notice requirements, not only those that inform workers about their rights and warn them of hazards, but also those on cigarette packages, in home mortgages, and many other areas.”

– Richard Trumka, president of the AFL-CIO labor union federation, in a statement quoted in the same The New York Times article May 8.

We checked the Constitution, and …

For generations, the First Amendment’s Free Speech Clause has been a battleground between companies and labor unions over how they communicate with workers about the issue of joining a union to bargain over workplace benefits. Recently, in the background of that struggle has been the reality that labor unions are continually losing popularity. In January, government figures showed that the rate of union membership in the U.S. was at its lowest level since 1916, and the decline is especially severe in private sector workplaces.

That trend, in fact, was a key factor in the National Labor Relations Board’s decision in 2011 to require employers whose dealings with employees are governed by the federal labor law that dates back to 1935 to put up an 11-by-17-inch poster telling workers about their rights. Declining union membership, the board found, was due in part to the fact that workers did not know their rights, and so should be told about them and told how to enforce those rights.

The board’s poster rule told workers that they had a right to form, join, or assist a labor union, a right to bargain collectively through a union, a right to discuss workplace benefits and conditions with other workers and with a union, a right to take action to improve working conditions, a right to strike and picket, and a right to choose not to engage in any of those activities.

The fight over that rule is a modern-day echo of past disputes arising out of NLRB attempts to police the workplace, when management associations complained in the courts and to Congress that the board had “pushed the labor relations balance too far in favor of unions,” as the Supreme Court described those complaints in a ruling five years ago.

That decision, in fact, noted that the Supreme Court as long ago as 1941 had recognized “the First Amendment right of employers to engage in non-coercive speech about unionization.” In other words, they were free to talk to their employees in ways that sought to discourage them from joining unions, so long as that was done without threats of reprisal or coercion. Congress, in fact, wrote that guarantee of employer free speech into labor law in 1947, in what is called the Taft-Hartley Act.

The Court of Appeals for the District of Columbia Circuit, in its ruling this month striking down the NLRB’s poster requirement, relied on that provision, but also gave what appeared to be an expanded interpretation of the First Amendment as it applies to employers’ speech rights.

The appeals court turned to Supreme Court rulings outside the workplace context: one that barred  a state from requiring motorists to put a state-approved slogan on their license plates, and another forbidding a school district from requiring students to salute the American flag even if that violated their religious beliefs.

The NLRB, the court said, was actually trying to force employers to deliver the NLRB’s own message as if it were their own–a form of compelled speech that the First Amendment forbids. The court noted that the challenging employer groups had argued that the poster was not neutral at all, but rather was strongly slanted in favor of unionism:

“Like the freedom of speech guaranteed in the First Amendment, [federal labor law] necessarily protects–as against the board–the right of employers (and unions) not to speak.”

Finding that nothing of the enforcement mechanisms the board had adopted to compel companies to put up the poster were allowed by labor law, the appeals court struck down the rule.

This dispute over the poster rule, of course, comes against a broader background of increasing management objection to what the National Association of Manufacturers has called the “rogue” behavior of the NLRB. The resistance to the board has spread to the Senate, with filibustering of appointees to the board, and by objections to President Obama’s appointments to the board to serve temporarily when the Senate was not in session to review those appointments.

The president’s lawyers have now taken to the Supreme Court the constitutional fight over his recess appointments to the board, and the court is likely to rule on that at its next term starting in October.

Whether the poster rule fight also goes on to the Supreme Court has not yet been decided. The board has said it is considering what to do next.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Edmund Ross

Johnson succeeded the presidency in 1865 after Abraham Lincoln’s assassination. A former Democrat who ran as a candidate alongside Lincoln, President Johnson’s relationship with the GOP leadership quickly crumbled.

A faction called the Radical Republicans, led by Thaddeus Stevens and Charles Sumner, dominated the GOP.

On February 24, 1868, President Johnson was impeached by the House of Representatives. The House charged Johnson with violating the Tenure of Office Act.

The alleged violation stemmed from Johnson’s decision to remove Secretary of War Edwin Stanton, a prominent Radical Republican left over from the Lincoln Cabinet. To block Johnson from removing Cabinet members without its approval, the House passed the Tenure of Office Act in 1867.

Johnson challenged the act by firing Stanton and appointing an interim replacement. The House quickly filed 11 impeachment charges, sending the case to the Senate for disposition.

Two-thirds of the Senate was needed to convict Johnson, and the Republicans made up more than two-thirds of its members. Chief Justice Salmon Chase presided over the trial, which started in March and ended in  late May. Thaddeus Stevens was one of the House prosecutors.

In the end, however, seven Republican senators voted against impeachment.

The dramatic scene would have fit right in with the movie Lincoln, with the outcome seemingly in doubt until the last undecided vote was cast.

“It is a singular fact that not one of the actors in that high scene was sure in his own mind how his one senator was going to vote, except, perhaps, himself,” said historian David Miller Dewitt.

The key day in the trial was May 16. The anti-Johnson forces were counting on a guilty vote on 11th and last article of impeachment. It was the first order of business and a summary of the other 10 articles. If President Johnson was found guilty in the first vote, he was out of office.

Senator Edmund Ross of Kansas cast the deciding vote, and for all purposes, he was expected to vote against Johnson, up until the night before the final roll call.

The chamber was stunned when Ross said “Not guilty.” The Radical Republicans asked for an adjournment until May 26, partly because of an upcoming party conventions, but also because they had no plan of attack after assuming Johnson wouldn’t survive the first vote. After failing at two other attempts on May 26, two more articles failed, and the trial ended.

The controversy, to this day, is why did Ross change his mind?

There were two serious constitutional issues involved in the trial. One was that some people didn’t think the Tenure of Office Act was constitutional. The other was that the Constitution, at that point, didn’t specify who became vice president when the president died or couldn’t serve.

If Johnson had been impeached, the Senate president pro tempore, Benjamin Wade, would have assumed the duties of the office until the next election. Wade had his own enemies within the Republican Party, including Ross (who saw Wade taking away his patronage powers in Kansas).

One theory is that Ross didn’t follow his constitutional conscience—he followed the cash. Ross may have been the beneficiary of a $150,000 slush fund set up by Johnson’s supporters.

In a 1999 article for Slate, writer David Greenberg pointed out another fact: Ross’s vote may not have been needed.

“At least four other senators were prepared to oppose conviction had their votes been needed–a fact that has been forgotten, maybe, because it doesn’t square with the High Noon portrait of Ross as the man of principle facing down the mob,” Greenberg said.

In later years, Ross was portrayed as a hero in John F. Kennedy’s book Profiles in Courage. Others, like historian David O. Stewart, paint a less flattering portrait of Ross when it comes to allegations of bribery and patronage spoils.

Ross lost re-election after the Senate trial and later switched to the Democratic party. He blamed the Senate trial vote for hurting his political career.

Then in 1885, the first Democratic president to take office since the Civil War, Grover Cleveland, named Ross as the governor of the New Mexico territory.

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Independence Hall.

The City of Brotherly Love became the ex-capital for several reasons, including the machinations of Alexander Hamilton and Thomas Jefferson, and a compromise over slavery.

But it was some rowdy actions in 1783 by Continental soldiers that started a movement for a capital city that was more secure and controllable.

Until then, Philadelphia had been the hub of the new nation. Important decisions were made there, and it was equally accessible from the North and the South.

The Continental Congress was meeting in Philadelphia in June 1783 at what we now call Independence Hall, operating under the Articles of Confederation.

However, there were serious problems afoot. The government had problems paying the soldiers who fought in the war against the British for their service.

The Pennsylvania Mutiny of 1783 was a crisis that literally forced the Congress to focus on its personal safety and pitted the federal government (in its weakened form) against the state of Pennsylvania.

Unpaid federal troops from Lancaster, Pennsylvania, marched to Philadelphia to meet with their brothers-in-arms. A group of about 400 soldiers then proceeded to Congress, blocked the doors to the building, and demanded their money. They also controlled some weapons storage areas.

Congress sent out one of its youngest delegates to negotiate with the troops: Alexander Hamilton, a former soldier himself. Hamilton convinced the soldiers to free Congress so they could meet quickly and reach a deal about repaying the troops.

Hamilton did meet with a small committee that night, and they sent a secret note to Pennsylvania’s state government asking for its state militia for protection from the federal troops.

Representatives from Congress then met with John Dickinson, the head of Pennsylvania’s government; Dickinson discussed the matter with the militia; and the state told Congress it wouldn’t use the state’s troops to protect it.

On the same day, Congress packed up and moved temporarily to Princeton, New Jersey. It traveled to various cities over the following years, including Trenton, New Jersey; Annapolis, Maryland; and New York City.

Delegates agreed to return to Philadelphia in 1787 to draw up the current U.S. Constitution, while the Congress of the Confederation was still seated in New York City.

Part of the new Constitution addressed the concerns caused by the Pennsylvania Mutiny of 1783.

Article I, Section 8 gave Congress the power to create a federal district to “become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful buildings.”

When Congress met in 1789, two locations were proposed for the capital: one near Lancaster and another in Germantown, an area just outside Philadelphia.

However, Hamilton became part of a grand bargain to move the capital to an undeveloped area that encompassed parts of Virginia and Maryland, receiving some help from Thomas Jefferson along the way.

The Residence Act of 1790 put the capital in current-day Washington as part of plan to appease pro-slavery states who feared a northern capital as being too sympathetic to abolitionists.

In turn, Hamilton received a commitment to reorganize the federal government’s finances by getting the southern states to indirectly pay off the war debts of the northern states.

A twist in a deal was negotiated by Robert Morris. Until the new capital was built on the Potomac, the capital would move be in Philadelphia for 10 years.

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During the following decade, Philadelphians lobbied hard for the capital to stay in Pennsylvania. They offered President Washington an elaborate mansion as an incentive to stay. Instead, he and his successor, John Adams, lived in a more modest house near Congress.

Also, a yellow fever epidemic hit Philadelphia in 1793, raising doubts about the safety of the area.

And native Virginians like Washington, Madison, and Jefferson were actively planning for a capital near their home.

So one May day in 1800, Congress ended its business in Philadelphia and started the move to the new Federal District. President Adams also left Philadelphia in April and moved into the White House in November.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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The show was well known for its intellectual bent, but it didn’t get everything right. Here are a few constitutional mistakes you can point out to your friends—for bonus points, try to display your know-how with the smug charm of Sam Seaborn.

1. Cabinet meetings aren’t required

President Jed Bartlet grumbles, “I find these Cabinet meetings to be a fairly mind-numbing experience, but Leo assures me they are constitutionally required” (“Enemies,” Season 1, Episode 8).

In reality, the Constitution doesn’t even mention the president’s Cabinet. It says in Article II, Section 2 that the president “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”

This phrase was the foundation for the Cabinet, but there’s certainly nothing about a required meeting schedule. In fact, the Cabinet was primarily set in motion by the precedent of President George Washington, who selected four department heads when he took office.

2. The Supreme Court doesn’t love only prime-numbered amendments

White House counsel Oliver Babish comments, “My staff’s work on the analysis of HR 437 ignored the Fourth Amendment implications and instead became fascinated with the Third, Seventh, and 11th. You gotta be a prime number to get the attention of the U.S. Supreme Court” (“Bad Moon Rising,” Season 2, Episode 19).

Some prime-numbered amendments do indeed get the attention of the Supreme Court—particularly the First Amendment. But an even-numbered amendment is right up there with the First as the amendment most frequently cited by the court: the 14th Amendment, which deals with equal protection of the laws and due process of law.

Also, HR 437 must be a very interesting bill if it has Third Amendment implications, since it is among the least cited by the Supreme Court. Though it did mention the amendment in the ruling for Griswold v. Connecticut, the court has never ruled directly on the meaning of the Third Amendment.

3. Don’t blame inauguration on Jefferson

In the series finale (“Tomorrow,” Season 7, Episode 22), this happens:

Actually, Jefferson, Adams, and Franklin were dead when inauguration was slated for January. The original Constitution scheduled the  inauguration for March. And by the way,  Jefferson and Adams were not drafters of the Constitution—they were both serving as ambassadors abroad during the Constitutional Convention. It was in 1933 with the ratification of the 20th Amendment that inauguration was moved to January, to shorten the “lame duck” term for the president and Congress.

4. You can’t be appointed to a House seat

In the show, the White House staff encounters Congressman Willis, who was supposedly appointed to fill his deceased wife’s seat in the House of Representatives (“Mr. Willis of Ohio,” Season 1, Episode 6).

In reality, Article I, Section 2 of the Constitution requires that a vacant House seat be filled by a special election, not an appointment: “When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”

Because elections are expensive to run and House terms are only two years, some governors have actually declined to call for a special election to fill a seat.

However, a vacant Senate seat can be filled by appointment. The 17th Amendment—which changed the Constitution so that senators would be directly elected by the people, not state legislatures—provides that a state governor may appoint a replacement to serve until a special election is called (Senate terms last longer than the House, for six years) or until the next general election.

It’s not unheard of, though, for a widow or widower to assume their spouse’s seat through election or appointment. Throughout American history, nearly 20 widows have filled the Senate or House seat left vacant by a deceased husband.

5. A presidential memo isn’t the only 25th Amendment option

When President Bartlet goes under general anesthesia to treat an injury from a shooting, confusion ensues about who is commander in chief in his stead. Several characters mention the 25th Amendment, saying it requires the president to write a memo to temporarily transfer power to the vice president. Staff member Toby says incredulously, “He’s hemorrhaging and he’s supposed to draft a memo?”

Section 3 of the 25th Amendment does provide that the president may offer a written declaration to temporarily defer power to the vice president. (We’ll revisit Bartlet’s use of that option another West Wing Wednesday…) But Section 4 provides another option: The vice president and “a majority of either the principal officers of the executive departments” (generally understood to be the Cabinet) can declare the president incapacitated. The president could then resume power by submitting a written declaration stating he was no longer incapacitated.

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The statements at issue:

“The American people deserve answers about how such seemingly unconstitutional and potentially criminal behavior could occur, and who else was aware of it throughout the Administration.”

– Senator Marco Rubio, Florida Republican, in a letter Monday to Treasury Secretary Jack Lew, calling for the Treasury’s “full cooperation with all investigations” of the scandal involving the Internal Revenue Service’s actions in making it tougher for specific ideological organizations to gain tax-exempt status under federal law.

“If the initial reports are verified, it is breathtaking that the IRS seems to be harassing mom & pop tea party organizations while ignoring what appear to be blatant abuses of the tax status right under its nose by groups pumping tens of millions of dollars into partisan political advertising.”

– J. Gerald Hebert, executive director of the Campaign Legal Center, an advocacy group promoting election finance reform, in a statement on Monday reacting to the scandal.

We checked the Constitution, and…

It is a core constitutional principle that the federal government cannot use its awesome powers—over taxes, or anything else—to single out groups because of their political views and treat them more harshly. That violates their rights of free speech and free association under the First Amendment, and their rights against arbitrary government action under the Fifth Amendment’s Due Process Clause.

But, even as the IRS scandal over the tax-exempt status of tea party–related political groups stirs widespread criticism, it may be harder to keep in mind also that, constitutionally, no group in America has a right to be exempted from taxes. A right to equal treatment by the IRS is not the same thing as a right to an exemption.

Someone within IRS, acting properly and within the law, has to make a decision about whether a group can qualify for an exemption from paying federal taxes. And the law is quite clear that organizations that are set up to do charitable work are not allowed to get or keep tax-exempt status if they are actively engaged in political campaign activity, or in lobbying Congress. If an organization is set up to promote a particular policy agenda, benefiting the “general welfare” of the people, however, it might qualify for tax-exemption even if it does some lobbying related to its policy goals, but it might risk that status (or be denied it in the first place) if its political actions become its “primary activity.”

As is obvious from such a general summary, someone has to interpret when an organization seeking to be relieved of paying taxes is doing too much or the wrong kind of lobbying or politicking.

The IRS has been immersed in controversy for years about how it enforces the limitations that do exist. The new scandal, of course, is a very different controversy, because it involves claims of a serious abuse of government power, not of inaction or administrative agency laziness. But the new scandal will only intensify the already insistent demands that the IRS do something to reform its tax-exempt review process.

The IRS, for example, still has not resolved complaints that it has hesitated to monitor the kinds of political activity in which the new super PACs can engage and still obtain or retain an exemption. That issue was stirred up by the actions of scores of PACs in last year’s presidential election, and the IRS has yet to indicate what it will do—if anything—about that.

While lawyers for 10 tea party groups with exemption requests pending asked the IRS on Monday to immediately grant those requests, or else face legal action, it is not clear that the new scandal itself must necessarily lead the IRS to do so. Again, while any IRS review of a pending application would have to be done within the rules and without discrimination, past misconduct by that agency does not translate into a mandate to start granting exemptions in batches to victims of its prior abuses.

Obviously, a lawsuit filed on behalf of any group still awaiting a response from the IRS is sure to make the point that each such group is a victim of the scandal, and the only proper remedy for that is an exemption, granted without delay. But each court reviewing such a legal claim will take the time to determine if a particular group has made the connection. Even if a court finds that a specific entity was victimized, that would not necessarily lead to an order for an exemption. That is an issue of tax law that has to be sorted out organization by organization. A court might order the IRS to give a group a fair hearing, but might not tell it to grant a specific exemption without proof that it actually satisfied the legal standards.

And there is another legal obstacle that any such lawsuit might have to overcome. Ordinarily, a court will not review an IRS order dealing with the exemption question until after such a request has been formally denied. That is the kind of final action that could set judicial review in motion. The mere fact that a request remains pending would not mean it had been denied.

At this stage, it seems most likely that the scandal will unfold primarily within the political branches of the federal government, with hearings in Congress to establish what went wrong and who was responsible, and with efforts in the executive branch to order some reforms without waiting for the possibility of new legislation curbing the IRS’s review powers.

There will be constitutional complaints, of the kind that Senator Rubio made in his letter to the Treasury on Monday, but it could be some time before firm answers are available on whose rights were actually violated. Initially, though, that is most likely to be a judgment that is made politically rather than judicially.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Jamestown depicted in 1624.

But Jamestown barely survived, as recent headlines about the confirmation of cannibalism at the colony confirm. The adaption to the North American continent by the early Europeans was extremely problematic.

The success of tobacco as an early cash crop helped Jamestown weather the loss of most early colonists to disease, starvation, and attacks by the resident population of Native Americans.

A turning point in Jamestown’s fortunes was in 1619, when a General Assembly met at a church on July 30. Two representatives from 11 regions of the area debated the qualifications of membership and other matters for six days. A heat wave ended the session of what would be known as the House of Burgesses.

The session established a government that citizens could address to settle grievances and end legal disputes.

It was a huge step forward, since numerous European attempts to establish any foothold in North America had failed for almost a century.

Spain has tried to establish at least five colonial settlements in North America during the 16th century. It had established footholds in Mexico, the Caribbean, and Peru.

But Spanish efforts failed in Georgia, North Carolina, Florida, and Virginia, in short order.

The settlement of San Miguel de Gualdape in what is now Georgia or South Carolina was built in 1526 with the first use of African slaves in North America. It only lasted three months. The colonists dealt with same problems as the Jamestown residents, with the added dimension of a slave revolt.

Another Spanish attempt near St. Petersburg, Florida, failed in 1527.

Fort San Juan was another failed Spanish effort in what is now western North Carolina in 1566 and 1567. The fort was abandoned and most other troops at other forts died.

The Spanish also tried to set up a Jesuit mission in Virginia in 1570, which failed when it was left unprotected and its priests and brothers were killed.

France failed in three attempts, before Jamestown, to set up colonies in the current-day United States in South Carolina, Florida and Maine. The settlement at Sainte-Croix Island in 1604 quickly moved on to a fort at Port Royal in Nova Scotia, in order to survive. Half the settlers died at Port Royal, and the survivors moved on to what became Quebec.

And the English had two notable failures.

The Lost Colony of Roanoke was set up in 1585 and its first settlers lasted almost a year, until they went back to England with Sir Frances Drake. A small force was left to guard a fort.

A second expedition returned in 1587 to try again to establish a settlement. The guards were all missing. About 115 people stayed behind. When English ships returned three years later, all the people, and their buildings, were gone.

The Popham Colony in Maine was established at the same time as Jamestown but only lasted for one year.

There were some early colonies that did survive from the pre-Jamestown era.

The settlement at Saint Augustine in Florida endured since about 600 colonists from Spain established the settlement in September 1565. The town was burned several times by pirates and English forces, but it survived.

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TIGTA, or the Treasury Inspector General for Tax Administration, has a special position in the Treasury Department—it audits the IRS. Basically, it’s the IRS of the IRS.

The fallout from the leaked TIGTA report has been swift and sudden, with conservative groups demanding a congressional investigation. On Monday, President Barack Obama said if the allegations were true, they were “outrageous” and the people involved would be “held fully accountable.”

Reuters and other news outlets obtained parts of the report over the weekend. It will be released publicly and in full this week.

On Friday, Lois Lerner, the director of exempt organizations for the IRS, acknowledged the “inappropriate” targeting of some groups by the IRS for closer scrutiny on their nonprofit applications.

Lerner said the behavior was limited to a Cincinnati branch office and that no applications that were targeted for closer inspection were denied.

The language in the draft said that groups that were also targeted included those with mission statements such as advancing  “political action type organizations involved in limiting or expanding government, educating on the Constitution and Bill Of Rights, [and] social economic reform/movement[s].”

TIGTA functions as a watchdog group whose mission is to “provide integrated audit, investigative, and inspection and evaluation services that promote economy, efficiency, and integrity in the administration of the Internal Revenue laws.”

Among its goals are protecting the safety of IRS employees; determining fraud, waste, and abuse at the IRS; and informing the people, Congress, and the Treasury secretary about problems at the IRS.

The idea of an IRS watchdog didn’t originate with the Founding Fathers or even the early version of the IRS that dates back to the Civil War era.

TIGTA was established in January 1999 as part of the Internal Revenue Service Restructuring and Reform Act of 1998 to provide independent oversight of IRS activities.

It assumed most responsibilities held by the IRS’s former Inspection Service, which was established in 1952 as part of the creation of the modern Internal Revenue Service under the direction of President Harry Truman.

Prior to that, the IRS was run using a patronage system, and the reorganization in 1952 put career professionals in charge of the service.

Under its current mandate, TIGTA has broad powers to make sure the $2 trillion (yes, that’s trillion with a T) handled by the IRS is accounted for.

Related Link: All about TIGTA

In addition to its power to audit the IRS, TIGTA has the power to conduct investigations. Once a problem is identified by its Office of Investigations, a special agent will investigate claims, and if warranted will refer them to the Justice Department or local authorities for prosecution.

All investigations concerning IRS employees are referred to IRS management for administrative action if misconduct is found.

TIGTA is part of the Treasury Department, but it also testifies before Congress on certain matters.

J. Russell George is the current Treasury Inspector General for Tax Administration. He was nominated to the post in 2004 by President George W. Bush and approved by the U.S. Senate.

House Oversight and Government Reform Committee Chairman Darrell Issa was among those who requested a TIGTA report after allegations that some nonprofits were seeing application approval delays.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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John Dickinson

In September 1774, when America’s First Continental Congress met in Philadelphia, there were no “united states,” just a collection of British colonies largely going their separate ways whose primary loyalty was to a distant British king. The brilliant, though occasionally cranky, Massachusetts delegate John Adams described the assembled delegates as a “gathering of strangers,” complaining that “the art of address of Ambassadors from a dozen belligerent Powers of Europe . . . would not exceed the Specimens We have seen here.”

Yet by July 4, 1776, the members of that congress, in spite of the significant differences in interests and ideology among them, were able to come together on that audacious decision to break all ties with Britain–a decision that makes congressional quarreling over debt ceilings, sequesters, or judicial appointments seem utterly trivial.

The critical question facing those 18th-century politicians was no different than those facing our politicians today–how to transcend their differences and find the path toward serving the common good. How was it that the founders were able to achieve that transcendence when our political leaders seem so hopelessly mired in partisan, and trivial, acrimony?

Some of the answers lie in the seriousness of the conflict with an imperial ruler. The First Continental Congress convened in order to fashion a united American response to Britain’s Coercive Acts, a series of parliamentary statutes aimed at punishing the colony of Massachusetts and, in particular, the “fanatics” of Boston who had dumped 92,000 pounds of tea in the town harbor. And, as the conflict with Britain escalated to life-and-death struggles on the battlefield, the stakes were raised, and congressional representatives from other parts of the country began to realize that a threat to one colony could soon be a threat to all.

But it was not only the increasingly dangerous external threat posed by the British army and navy that brought America’s congressional representatives together. For most of the 22 months between September 1774 and July 4, 1776, those “strangers” from across the more than 330,000 square miles of American territory lived together in cramped quarters in Philadelphia’s boardinghouses, and drank and dined together daily in the city’s taverns. Unlike their congressional counterparts today, who spend three or four days a week in Washington and then fly off to raise money for their next political campaign, the members of America’s revolutionary Congress worked and lived together. They acquired a level of familiarity and respect for one another that is altogether missing in politics today.

The months between January and early July of 1776 were particularly difficult for the 56 men living together in Philadelphia. They were months during which, as Adams’ older cousin Sam described them, “the child independence was struggling to be born.” When Virginia’s Richard Henry Lee finally introduced a resolution proposing independence on June 7, as many as five or six colonial delegations resisted the move.

On July 1, when the highly respected Philadelphia lawyer John Dickinson delivered a long and carefully prepared speech warning that a precipitous move for independence might result in burning towns, bloodshed, and ignominious defeat, there were many in the room who shared his fears, and many others who were still sitting on the fence. In a straw vote about 7 that evening, nine colonial delegations voted in favor of Lee’s resolution for independence. South Carolina and Pennsylvania opposed it, Delaware was divided, and New York abstained. The advocates of independence had obtained their majority. But they knew that even a two-thirds majority on a matter of such epochal importance would not be sufficient.

By the next morning, a divided American congress became a united one. Although New York’s delegates would have to wait until July 9 before getting their legislature’s official permission to support independence, the other three colonies that had withheld their backing on July 1 came around. The dynamic in each of those colonies differed, but it was the actions of the Pennsylvania delegates–representatives of the country’s most rapidly growing and economically powerful colony, whose support for independence was vital to its success–that provide us with the most instructive lesson in political leadership.

Dickinson still controlled the balance of power within his colony’s delegation. He remained committed to the position that he had taken the previous day, but in the decisive vote on July 2, he, along with his Pennsylvania colleague Robert Morris, withdrew “behind the bar”–the rail which to this day keeps visitors from walking into the space in which the delegates to the Congress were doing their business–thus enabling a bare majority of the Pennsylvania delegation to cast votes in favor of independence.

Dickinson’s decision to absent himself from the vote was every bit as much an expression of his love of country as was the passionate advocacy of independence by his frequent political adversary John Adams. A few days later, Dickinson would give yet another demonstration of his love of country by leading a battalion of Pennsylvania militiamen in battle against the British army in Elizabethtown, New Jersey.

The behavior of those members of Congress who reluctantly added their assent to independence on July 2, as well as that of men like Dickinson, who went “behind the bar,” provides us with an example of what may be the most striking difference between the politicians of 1776 and those who sit in Congress today. They understood that there were at least some occasions in which the attribute of humility–the ability to subordinate one’s personal opinions in the name of unity and consensus–was a vital ingredient in serving the public good. Don’t we wish that our elected officials today could carry out their business with at least some of that sense of humility?

Richard R. Beeman is the author of “Our Lives, Our Fortunes and Our Sacred Honor: The Forging of American Independence, 1774-1776,” the John Welsh Centennial Professor of History at the University of Pennsylvania, and a trustee at the National Constitution Center. He will discuss his book on Monday at 6:30 p.m. at the Constitution Center. The program will be moderated by Jeffrey Rosen, the center’s new president and CEO. For reservations, call 215.409.6700, or visit constitutioncenter.org.

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