Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence (29 page)

The facts of the case are part of one of the great political dramas of American history—the so-called Watergate scandal. In June 1972, five burglars, with authorization from Republican Party officials and perhaps President Nixon himself, broke into the Democratic Party headquarters in the Watergate building complex in Washington, D.C., in order to obtain information about George McGovern, President Nixon’s opponent in the 1972 presidential election. In the ensuing investigation, seven of President Nixon’s close advisers were indicted by a grand jury. In the course of that investigation, it was also discovered that President Nixon had a collection of recorded tapes in his office that would be likely to shed light on whether members of the president’s staff—and indeed the president himself—had engaged in a cover-up of the Watergate affair.

President Nixon resisted turning over the tapes, arguing that matters involving national security might be compromised by the release of the tapes and citing “executive privilege” as the basis for his refusal to turn over the full transcripts of the tapes. The question of whether President Nixon should be compelled to turn over the tapes or transcripts was initially heard in the U.S. District Court in Washington, D.C. The court ruled that the president should reveal the full content of the tapes—a decision that Nixon, citing executive privilege, again resisted. The Supreme Court heard the case on July 8, 1974, and handed down its decision on July 24.

The Court ruled unanimously (8-0, with Justice William Rehnquist recusing himself because he had previously served in the Nixon administration) that President Nixon must turn over the tapes. Notably, Chief Justice Warren Burger, who had been appointed to his position by President Nixon in 1969, wrote the majority opinion. Burger did not find that that there were sufficient issues of national security to justify withholding the tapes, nor was he persuaded that issues of separation of powers or of the general need to keep executive communications confidential were sufficient to sustain a claim of “executive privilege.” In Burger’s words: “Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the . . . [absolute] confidentiality of Presidential communications.”

The immediate effect of the decision in
United States v. Nixon
was to force the resignation of President Nixon, just a few weeks later, on August 9, 1974, because as the content of the Nixon White House tapes was revealed, the president’s impeachment by the House of Representatives seemed certain and his conviction by the Senate highly likely. More generally, the decision made it more difficult for any subsequent president to withhold information from other branches of the federal government or from the public simply by asserting the right of executive privilege.

 

 

 

 

THE VOLUME OF WRITING ON THE ORIGINS, creation, and evolution of the American Constitution is vast, but for the student who wishes to learn more about the particular topics covered in this book, here is a brief listing of some of the most important works written about the American Revolution and Constitution.

The classic work on the drafting and philosophy of the Declaration of Independence is Carl Becker,
The Declaration of Independence: A Study in the History of Political Ideas
(New York: Knopf, 1922). An excellent recent account of the larger context in which the Declaration was forged is Pauline Maier,
American Scripture: Making the Declaration of Independence
(New York: Knopf, 1997). David Armitage,
The Declaration of Independence: A Global History
(Cambridge, MA: Harvard University Press, 2007) views the wider implications of the Declaration of Independence.

The starting point for understanding how the Constitution was created and what the framers of that document intended is the extensive notes kept by James Madison during the Constitutional Convention. Those notes, together with many other documents relating to the creation of the Constitution, can be found in Max Farrand,
The Records of the Federal Convention of 1787
, 4 vols., rev. ed. (New Haven, CT: Yale University Press, 1937, repr. 1966). Jack N. Rakove, ed.,
The Annotated U.S. Constitution and Declaration of Independence
(Cambridge, MA: Harvard University Press, 2009) presents extensively annotated versions of both the Declaration of Independence and the Constitution. For an even more detailed analysis of each provision and amendment of the Constitution, see John R. Vile,
A Companion to the United States Constitution and Its Amendments
, 4th edition (Westport, CT: Praeger, 2006). See also Akhil Reed Amar,
America’s Constitution: A Biography
(New York: Random House, 2005); and Jack N. Rakove,
Original Meanings: Politics and Ideas in the Making of the Constitution
(New York: Knopf, 1996).

The authoritative scholarly edition, from which the excerpts in this volume are taken, is Jacob Cooke, ed.,
The Federalist
(Middletown, CT: Wesleyan University Press, 1966). Among the dozens of works that have analyzed
The Federalist Papers
, a couple of the most useful are David Epstein,
The Political Theory of The Federalist
(Chicago: University of Chicago Press, 1982); and Garry Wills,
Explaining America: The Federalist
(Garden City, NY: Double-day, 1981).

An excellent, brief survey of the revolutionary era is Gordon S. Wood,
The American Revolution: A History
(New York: Modern Library, 2003). Among the most influential works on the American Revolution are Bernard Bailyn,
Ideological Origins of the American Revolution
, enlarged ed. (Cambridge, MA: Harvard University Press, 1992); Robert Middlekauf,
The Glorious Cause: The American Revolution , 1763-1789
(New York: Oxford University Press, 1982); Pauline Maier,
From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776
(New York: Knopf, 1972); and Gordon Wood,
The Radicalism of the American Revolution
(New York: Knopf, 1992).

The story of the extraordinary challenges and changes occurring within America during the period between the Declaration of Independence and the framing of the Constitution is best told by Gordon Wood in
The Creation of the American Republic, 1776-1787
(Chapel Hill, NC: University of North Carolina Press, 1969). See also Jack Rakove,
The Beginnings of National Politics: An Interpretive History of the Continental Congress
(New York: Knopf, 1979); and Forrest McDonald,
E Pluribus Unum: The Formation of the American Republic, 1776-1790
(Boston: Houghton Mifflin, 1965).

The most recent, comprehensive account of the Philadelphia Convention is Richard R. Beeman,
Plain Honest Men: The Making of the American Constitution
(New York: Random House, 2009). An older, dramatized account is Catherine Drinker Bowen,
Miracle at Philadelphia: The Story of the Constitutional Convention, May to September, 1787
(Boston: Little, Brown, 1966). See also Richard Bernstein,
Are We to Be a Nation? The Making of the American Constitution
(Cambridge, MA: Harvard University Press, 1987); and Clinton Rossiter,
1787: The Grand Convention
(New York: Macmillan, 1966).

Merrill Jensen, John Kaminski, and Gaspare Saladino, eds.,
The Documentary History of the Ratification of the Constitution
, twenty-one volumes to date (Madison, WI: State Historical Society of Wisconsin, 1976-) have nearly completed the monumental project of publishing the definitive collection of all of the known primary sources relating to the ratification of the Constitution. Secondary works on ratification are Robert Alan Rutland,
The Ordeal of the Constitution: The Antifederalists and the Ratification Struggle of 1787-1788
(Norman: University of Oklahoma Press, 1966); Saul Cornell,
The Other Founders: Antifederalism and the Dissenting Tradition in America, 1788-1828
(Chapel Hill: University of North Carolina Press, 1999); and Michael Allen Gillespie and Michael Lienesch, eds.,
Ratifying the Constitution
(Lawrence: University Press of Kansas, 1989).

Gordon S. Wood,
Empire of Liberty: A History of the Early Republic, 1789-1815
(New York: Oxford University Press, 2009) is a monumental account of the critical early years of the young republic. For an excellent, brief account, see James Roger Sharp,
American Politics in the Early Republic: The New Nation in Crisis
(New Haven, CT: Yale University Press, 1993). George Washington’s critically important role in establishing government under the Constitution is discussed in innumerable biographies of America’s first president; one of the best is Joseph Ellis,
His Excellency, George Washington
(New York: Knopf, 2004).

This is a vast subject area encompassing nearly all aspects of America’s history. A few of the notable books among the hundreds on the topic are John A. Garraty, ed.,
Quarrels that Have Shaped the Constitution
, rev. ed. (New York: Harper and Row, 1987); Herman Belz, Winifred Harbison, and Alfred H. Kelly,
The American Constitution: Its Origins and Development
, 7th ed. (New York: W.W. Norton, 1991); Joseph F. Menez and John R. Vile,
Summaries of Leading Cases on the Constitution
, 14th ed. (Lanham, MD: Rowman and Littlefield, 2004); Harold Hyman and William M. Wiecek,
Equal Justice Under Law: Constitutional Development, 1835-187
5 (New York: Harper and Row, 1982); and William Nelson,
The Fourteenth Amendment: From Political Principle to Judicial Doctrine
(Cambridge, MA: Harvard University Press, 1988).