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viii Prologue
teach us all something about how that delicate balance between individ-
ual rights and the rights of society works. They also help explain how our
Constitution adapts to changing times and how one Supreme Court cor-
rects errors of past courts. These cases are what shaped the Constitution
into the living document that Chief Justice John Marshall said it must
become.
On September 17, 1787, the framers signed the Constitution, but
that did not end the writing of that document. As the delegates left
Philadelphia and the ratification process began, one Philadelphia pam-
phleteer asked that future generations not consider it error-proof Tench
Coxe wrote: "There is no spirit of arrogance in the new federal Constitu-
tion. When experience has taught us its mistakes, the people whom it
preserves, absolutes all powerful, can reform and amend them." Two
years later the 462 words of the Bill of Rights were added; since then 16
other amendments have updated the Constitution, addressing the issues
of slavery, women's suffrage, prohibition, income tax, and presidential
succession. Yet the amendments are only a part of the updating. The
Constitution has also been shaped by the 104 justices of the Supreme
Court—from John Jay to Sandra Day O'Connor—as they applied that
eighteenth-century document to a constantly shifting spectrum of dis-
putes. The cases involved issues ranging from one man's wharf and the
silt in Baltimore harbor to one woman's right to have an abortion to the
rights of children of illegal aliens. These "petty cases," as Justice Frank-
furter called them, which caused the Constitution to review itself, fre-
quently began in such humdrum places as gloomy police stations or high
school classrooms or bank branches.
It turns out that the 1787 version of the Constitution was only the
first draft of what we now call the law of the land. A parade of disparate
claims brought by citizens and noncitizens demanding their day in court
has made all the difference. These heroes and scoundrels, winners and
losers, may have had as much to do with the writing of the Constitution
as the drafters. They fought the system and proved that the written
Constitution was worth more than the parchment it was written on—if
only by showing that it could adapt as the nation grew and changed in
the centuries that followed. It is these cases and the justices of the Su-
preme Court that have insured that our basic charter was not a prolix
legal code but a human document. As Chief Justice Marshall wrote, the
Constitution was "intended to endure for the ages . . . and consequently
to be adapted to the various crises of human affairs."
The Constitution has to do with our law, but it also has to do with
how we live our lives and the anguishing choices that confront us and our
society every day. "A free government is a complicated piece of machin-
ery," wrote John Adams, "the nice and exact adjustment of whose springs,
wheels, and weights is not yet well comprehended by the artists of this
age and still less by the people." From that contraption of springs, wheels,
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