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Intro -- Contents -- Foreword -- Author's Preface -- Introduction -- Chapter 1. The "Conspiracy Theory" of the Fourteenth Amendment: Part I -- Chapter 2. The "Conspiracy Theory" of the Fourteenth Amendment: Part II -- Chapter 3. Justice Field and the Fourteenth Amendment -- Chapter 4. The Early Antislavery Backgrounds of the Fourteenth Amendment -- Chapter 5. Procedure to Substance: Extrajudicial Rise of Due Process, 1830-1860 -- Chapter 6. The Fourteenth Amendment and School Segregation -- Chapter 7. Our "Declaratory" Fourteenth Amdendment -- Chapter 8. Crosskey's Constitution: An Archeological Blueprint -- Chapter 9. An Innocent Abroad: The Constitutional Corporate "Person" -- Chapter 10. "Builded Better Than They Knew" : The Framers, the Railroads and the Fourteenth Amendment -- Chapter 11. Acres for Cents: The Economic and Constitutional Significance of Frontier Tax Tiles, 1800-1890 -- Chapter 12. "Prophet Unhonored" : Robert S. Blackwell, Tax Titles, and the "Substantive Revolution" in Due Processs and Equal Protection, 1830-1880 -- Chapter 13. The Waite Court and the Fourteenth Amendment -- Chapter 14. Everyman's Constitution: A Centennial View -- Appendixes -- Index.

Our theme is simple, overpowering: Justices of the Supreme Court, a number of whose predecessors destroyed the bulk or their correspondence, and who themselves may be tempted to do likewise, nonetheless quite evidently desire, and certainly deserve, faithful (if not quite full) reconstruction, both of their individual roles, and of the Court's, in our constitutional scheme. Much of this story, to quote the then Professor Frankfurter, is "largely irrecoverable,"' yet indispensable to an understanding of our institutions. Manifestly, something of a paradox is involved in our whole attitude toward judicial history. Much of the law, particularly judge-made public law, is a product of highly selective formulae designed to achieve solutions by selection, by simplification, and even by oversimplification. Yet do we not also simultaneously criticize historians and biographers for abridging an historical record, for forcing their refractory and incomplete materials to fit some preferred or presumed thesis or formula? Reconsideration, of course, at once dispels the paradox: judges are privileged but historians, biographers and legislators are not. Silence, ellipsis, are acknowledged tools of the judicial craft, sanctioned as the lesser evils, in return for getting the job done, the decision made. Therefore reasons are offered, and expected, as matters of grace, not of right. This is elemental. The historian, on the other hand, really is stuck. He must document fully and fairly; he is liable for the full record. He must be "judicial" even when he suspects that counsel and judges were not. He must probe and assess, judge and clarify, not only the opinion and the mountainous record, but also the motives and motivations even when these are obscure, feigned, or denied.

The end of the momentous year symbolized by the physical scientists' entrance into national politics and political scientists' introduction to nuclear physics finds state appellate courts focusing on problems of business and reconversion; professionally critical, if not apprehensive, of the course taken by their superior in Washington; dubious of the behavior of organized labor, yet divided upon both the desirability of judicial discipline and the proper means of administering it; maintaining their separate, often irreconcilable, views on regulation of business and agriculture; above all, enjoying, like their superiors and predecessors, the historic, self-imposed duty of fitting constitutional garments to institutional girth.How to constrict the swollen national waistline without risking grave internal pressures taxes ingenuity to the utmost. On the whole, a prudent realism still is evident in dealing with problems of price control. The restlessness and doubts noted last year, however, have persisted and find freer expression. Paradoxically, state enforcement of federal penalties is generally sustained, despite ancient but dissolving dogmas to the contrary; whereas coöperative state or municipal action designed to reinforce and supplement the Emergency Price Control Act has suffered serious reverses.

For courts of forty-eight states to interpret forty-nine detailed organic acts with an eye toward maintaining limited federal government amid centralizing total war and a distracting national election, challenges not only the statesmanship of performers, but the discrimination of reviewers.Collectively, the major state court decisions in the third year of the war point toward a resurgence of judicial power, a reëmphasis upon the rights and the place of the states and upon the legislative as opposed to the executive branch, a new period of exceptional interest and fertility in the growth of constitutional doctrine.War, paradoxically, has bolstered as well as undermined the creed of states' rights. The pattern that has emerged from the small but growing number of federalism cases reveals state courts no longer content to make a virtue of necessity. "Little OPA" acts and ordinances are generally upheld. But expanded federal controls exercised administratively in fields long reserved to the states meet steadily mounting opposition—especially if they are not obviously crucial to the war effort or to the stability of a war economy. Even actions taken under those provisions of the Price Control Act which were deliberately framed to safeguard federal administrators from state-court interference have suffered nullification. Since the date of the Yakus and Willingham decisions, statutory construction has supplanted constitutional law as the medium for resolving those personal and delicate questions of the state judges' own powers under the Price Control act.

Total war may be either the negation of constitutionalism or the ultimate test of its vitality. During the third year since Pearl Harbor, the leading constitutional cases decided in state courts have at last begun to show the operation of the principle of limited government in war-emergency conditions. The judicial veto has been vigorously used. Separation of powers in particular and, to some extent, non-delegability of legislative power have revived to new strength after a period of apparent decline. Minority rights, although only slightly curtailed in the readjustment to paramount war-time needs, have suffered more serious modifications in other respects. Otherwise there has been a notable absence of outstanding civil liberties cases. The courts have vied with legislatures in manifesting a growing conservatism toward the constitutional rights of labor. The position of the state, and especially the position of the state courts in the federal system, has been a continuing source of constitutional development. Problems of government and business have more than lost their depression-era dominance. Signs of judicial distaste for popular participation in the legislative process have persisted.