Constitutional Law I (Fall 2018)

 

Class Instructors Office Hours and Locations
Tom Keck  Tu 11:00 am-12:00 pm; Th 1:30-2:30 pm
tmkeck@maxwell.syr.edu (by appointment)
(315) 443-5862 Eggers 312
Teaching Assistants
Brianna MacMahon Mon 1:30-3:00 pm
brmacmah@syr.edu Eggers 024
Kim Waddy Wed 3:30-5:00 pm
kwaddy@syr.edu Eggers 025

Class Time and Location: T, Th 9:30-10:50 am, Lyman 132

Prerequisite: Sophomore standing or permission of instructor.

Course Content

The framers of the U.S. Constitution tried to design a government that would be vigorous enough to serve the people’s needs, but would prevent office holders from using its powers to promote their own interests. Likewise, they sought to design a government that would be responsive to the demands of popular majorities, but that would also respect the rights of minorities. They came up with a Constitution that has survived for more than 200 years, so they must have been doing something right. Still, their design included a number of features that were controversial at the beginning and a number of others (or sometimes the same ones!) that are controversial today.

For example, the Constitution’s severely fragmented system of government authority has sometimes prevented the federal government from responding rashly to the demands of the moment, but at other times, it has prevented the government from addressing important national problems. In similar fashion, the complex set of indirect elections and appointments that the framers designed for choosing our nation’s lawmakers has sometimes succeeded in “filtering” and improving the public will, but at other times, it has prevented the public’s voice from being heard at all. And our life-tenured federal judges have sometimes stood as valiant defenders of individual liberty and minority rights, but at other times, they have served as shields of privilege, power, and the status quo.

In this course and its sequel (Con Law II), we will seek to evaluate the performance of this constitutional system by examining its evolution over time. Moving chronologically from the founding era to the present, we will assess three related strategies adopted by the framers to empower democratic government while also limiting it. The framers sought to limit governmental power by (i) dividing it among many hands, (ii) subjecting it to the regular check of democratic elections, and (iii) authorizing the judicial protection of certain fundamental rights. We will examine these strategies in the context of a wide range of legal and political conflicts–involving slavery and emancipation, government regulation of the capitalist marketplace, religious freedom, the right to bear arms, free speech during wartime, and much more.

Learning Objectives

By the end of the semester, all students will have widened and deepened their knowledge of the US constitutional system and will have improved their critical reading and writing skills. This knowledge and these skills will help students think like a lawyer; if you go on to law school, you will get lots more practice at this, but this course will provide an introduction. This knowledge and these skills will also help students think like a citizen; sometimes, we will be talking and writing about the Constitution as if we were lawyers or judges, but more often we will do so as citizens (though I recognize that not everyone in the class is a citizen of the United States). As citizens, it is important for us to understand what role the Supreme Court and the Constitution are supposed to play in our political system, how well they are actually functioning in practice, whether and how this performance has changed over time, and how best it might be improved in the future.

In sum, the most important goals of the course are to help you develop an enriched understanding of the principles embedded in this country’s fundamental law and a refined ability to determine on your own whether the practice of American politics is faithful to these principles. As such, the course addresses controversial topics that raise difficult questions about our personal experiences and political beliefs, and it is therefore essential that students make every effort to tolerate competing views and to treat each other with concern and respect.

Course Readings

Most of the readings for the course are from the following book, which is available for purchase at the SU Bookstore:

  • Howard Gillman, Mark A. Graber, and Keith E. Whittington, American Constitutionalism: Powers, Rights, and Liberties (Oxford University Press, 2015). ISBN: 978-0-19-934338-6.

This is the only required book, but it is quite expensive (approximately $125). It is available on 2-hour reserve at Bird Library, but because we’ll be reading so much from it, I recommend that everyone purchase it. If this poses a hardship for anyone, please discuss this with me as soon as possible. Also, note that we’ll be using this book in Con Law II in the Spring, so for those of you continuing on, there will be no need to buy an additional book.

In the course schedule below, the book is referred to as “GGW,” for Gillman, Graber, and Whittington. Some additional required readings will be available on-line or will be distributed in class. The on-line readings are linked from the on-line version of this syllabus. The following on-line resources may be useful as well:

  • U.S. Supreme Court (official website)
  • SCOTUSBlog (the favorite blog of Supreme Court junkies everywhere)
  • Lexis Nexis (great source for decisions from all levels of the state and federal judiciary)
  • Oyez (audio files of hundreds of Supreme Court oral arguments)

Course Expectations

Grades will be based on three papers, two exams, one civic engagement assignment, occasional in-class writing assignments (likely including unannounced quizzes), and class attendance & participation.

In addition, each student must visit the instructor or one of the TAs in their offices at least once during the semester, and each student must recite from memory one provision of the Constitution. You can choose any provision you like, and you can try as many times as needed, but you must successfully memorize and recite one passage. If you fail to complete this task, you will receive a zero for the attendance & participation portion of your grade.

The papers (20% of your final grade each; 60% total)

A substantial portion of your final grade will be determined by your completion of three out-of-class writing assignments. In completing these three assignments, you have a long list of topics from which to choose. Each topic has a different due date, as indicated in the course schedule below. Each paper should be approximately four pages, typed and double-spaced. More importantly, each paper should demonstrate your close reading of, and active engagement with, the texts that are assigned in the course schedule below. None of these papers requires any additional or outside reading, and I discourage you from doing any. What I am looking for is a clear argument of your own that responds to the assigned question and that is supported by a careful, detailed, and thoughtful discussion of the materials we have read. This support should include specific references and quotations to the readings, and you should be sure to provide page citations for each one.

Since good writing comes from careful revision, I encourage you to discuss your papers with me and/or one of the teaching assistants before they are due. In addition, please consult my paper expectations guide before completing each assignment.

Hard copies of all papers are due in class at 9:30 am on the date indicated in the schedule. In addition, on that same day, electronic copies of all papers must be submitted to turnitin.com, available through Blackboard under the Assignments tab. Late papers will be accepted only under unusual circumstances, and only with Professor Keck’s explicit approval. All students must turn in at least one paper by September 13, at least two by October 9, and at least three by November 29; if you turn in four by November 29, we will drop your lowest grade. With those provisos, you may choose any of the options listed in the course schedule below.

As you page down through the course schedule, you will note that each of the assigned paper topics is large and challenging, and each paper could well occupy more than four pages. We won’t punish you if you veer onto a fifth page, but do your best to boil the question down to its essence, to focus in on a central argument, and to support that argument with carefully selected references (including quotations) to the primary sources that appear in the GGW book (and other required readings).

Exams (12.5% each; 25% total)

We will have a midterm exam in early October and a final exam in December. Both will be in-class, closed-book exams. I will provide more details as the semester proceeds.

Civic engagement assignment (5%)

Sometime between now and election day in November, each student must pick one candidate for office who is on the ballot this Fall (at any level), identify his/her position on one or more constitutional issues, and make an effort to directly engage with his/her campaign via email, Facebook or Twitter about that issue. Once you get a response (which may take more than one attempt), take a screen shot and tweet it to me @tmksyracuse. (If you’re not on Twitter, you can show it to me or one of the TAs during an office hours visit.) Extra credit if you successfully engage two or more candidates for the same office regarding the same constitutional issue.

 

Attendance, participation, and in-class writing (10% of your grade)

This portion of your grade will be based on your in-class contribution to your own learning and that of your classmates. This contribution will require your physical presence in class, diligent preparation beforehand, active engagement while you are there, and occasionally some in-class writing assignments (usually unannounced).

Physical presence is clear enough. We all have legitimate reasons for missing class on occasion (illness, religious holidays, university-sponsored travel, etc.), but in the absence of such legitimate reasons, I expect everyone to be in class. When you miss class, you should let me know when and why, and you should record the date and reason for your own records. Diligent preparation requires that you read the assigned pages prior to class and, whenever possible, spend some time thinking or (even better) talking about the material before class as well. The closer you can come to eating, sleeping, and breathing Con Law for the next four months, the better you will do. Active engagement involves attentive listening, careful note-taking, responding to my questions in class, raising questions of your own whenever there’s something you don’t understand, and seeking help from me or the teaching assistants outside of class whenever necessary. I recognize that this sort of class participation comes with some risks. After all, you might say something that reveals your own lack of knowledge. Rest assured that no one will be penalized for being wrong or imprecise, for expressing uncertainty or frustration, or for changing their minds. But it should be clear that you are trying, that you have done the readings, and that you are working toward a mastery of the material. In-class writing assignments (including quizzes) may occasionally be used to assess students’ comprehension of the required readings.

Your attendance & participation grade will be assigned as follows: On the last day of class, you should submit a one-page self-assessment in which you assign yourself a letter grade (A, B+, etc.) for attendance & participation and write a couple paragraphs explaining and justifying that grade. In this self-assessment, you should address the following questions:

  • How many times were you absent from class? When and why? (Please list the dates, with an explanation for each one.) When you missed class, did you listen to the lecture recording? How helpful did you find these?
  • How often did you participate in class discussions? When you didn’t participate, were you nonetheless alert and prepared for class? If so, then why didn’t you speak up on those occasions?
  • Approximately how many pages of notes did you take during each class session? When and how did you review those notes later on? How helpful did you find them?
  • During class, how often did you do anything that might have distracted your fellow students (e.g., chatting, sleeping, texting, opening your laptop, arriving late, leaving the room during class)?
  • How often did you visit me or the teaching assistants during office hours?

The teaching assistants and I will read your self-assessment, compare it with our own perceptions, combine those with your performance on any in-class writing assignments, and then assign you a grade for attendance & participation.

Course Policies

Attendance and course readings: As noted above, successful performance in this course will require eating, sleeping, and breathing Con Law. More literally, it will require regularly reading, writing, thinking, and talking about the course material. I’ve been teaching constitutional law for more than twenty years now, and I have yet to have a student find a shortcut around this fact. Reading, writing, thinking, and talking about the course material. Every day. Or as close to that as you can manage.

Among other things, this task will require regular attendance in class. When you miss a class, however, you will usually be able to listen to an audio recording of that lecture on Blackboard. Those recordings are generally good enough to fill in the gaps caused by occasional absences, but they are not a good substitute for regular attendance. When you are in the room, you will be able to see the board, hear what I say without any technical issues, and most importantly, ask questions when you don’t understand something. As such, irregular attendance will negatively affect your grade both directly (in the participation portion) and indirectly (by hindering your performance on exams and papers).

Laptops and other electronic devices: During class, your jobs are to listen actively, take careful notes, reflect on the concepts we are discussing, and participate in those discussions when you have something to say. None of these jobs requires a laptop, a tablet, or a phone, and the use of such devices during class can be distracting to students sitting nearby. As such, all electronic devices must be turned off and put away promptly at 9:30 a.m. and must stay put away until 10:50 a.m. FWIW, educational research has demonstrated that taking notes by hand (i.e., with pen or pencil) significantly improves long-term retention and understanding of concepts; click here, here, or here for summaries of some of this research.

Grading policy: Most of the written assignments for this course will be graded by a teaching assistant. If you have any questions about these written assignments, either before or after they are due, you are welcome to speak with either me or one of the TAs. If you are dissatisfied with your grade on any assignment graded by a TA, you may appeal that grade to me. To do so, you should submit a clean copy of the paper to me, which I will re-grade from scratch. This means that you could receive a grade that is lower, higher, or the same as the grade originally assigned.

Late paper policy: I was a student once upon a time, and I remember that crises sometimes come up. If you will have trouble producing your best work by the relevant deadline, come discuss the situation with me (not with the TA). If and when I agree to offer an extension, I will grade the late-arriving paper myself.

Academic support services: SU provides a variety of tutoring and academic support services, and I encourage you to avail yourself of these resources. Doing so may help you learn the course material better, determine the best strategies for studying that material, improve your writing skills, and have less stress about your success in the course. Tutoring centers include the Tutoring & Study Center (TSC), the Writing Center, the Math and Calculus Clinics, the Physics Clinic, the Chemistry Clinic, and the Athletics Academic Services Center. Further details are available here.

Academic integrity: The Syracuse University Academic Integrity Policy holds students accountable for the integrity of the work they submit. This means that it is your responsibility to be familiar with the policy in general and to learn about the specific expectations of each of your instructors regarding proper citation of sources in written work. The policy governs the integrity of work submitted in exams and assignments as well as the veracity of signatures on attendance sheets and other verifications of participation in class activities. Serious sanctions can result from academic dishonesty of any sort, but in my experience, the most common form of such dishonesty is plagiarism, which consists of the failure to properly credit the sources of anyone else’s ideas, information, or language that are incorporated into your own work. If you are caught violating any of these rules, I will assign an F for the course and then refer the matter to the College of Arts & Sciences academic integrity coordinator for additional action. All papers for this course will be submitted electronically through Turnitin.com, a resource which aids students in assessing whether they have properly cited all sources and aids instructors in identifying instances of plagiarism. You should be aware that all papers you submit for this class will become part of the Turnitin.com reference database for the purpose of detecting future plagiarism.

Future use of student academic work: Any work that you produce as part of your participation in this course may be used for educational purposes in future courses. For example, if you write a very good paper, I may distribute it in future classes as a model. If and when I do so, I will always remove your name so that the work is rendered anonymous. In addition, as noted above, Turnitin.com will maintain copies of all submitted papers in order to enhance its efforts to detect future plagiarism.

Reasonable accommodation: If you believe that you need accommodations for a disability, please contact the Office of Disability Services (ODS), located in Huntington Hall (443-4498). ODS is responsible for coordinating disability-related accommodations and will issue Accommodation Authorization Letters when appropriate. Since accommodations may require early planning and generally are not provided retroactively, please contact ODS as soon as possible.

Religious holidays: In accordance with SU policy, I will excuse any absences that result from religious observances, provided that you notify me in advance of the planned absence.

Office hours and email communication: This is a large class, but the TAs and I want to get to know each of you as well as we can, in order to ensure that you are each mastering the course material to the best of your ability. As such, you are each required to visit me or one of the TAs in our respective offices at least once during the semester. When you come to see one of us, I hope you’ll have an interesting question about the course material, but you should come even if you do not have any questions. We’ll be keeping track, and we will record a grade of zero for attendance & participation if you do not visit one of us by the end of the semester. You are, of course, welcome to visit us more than once–indeed, as many times as you like.

The teaching assistants’ regular office hours are listed at the top of this syllabus. If those day/time windows work for you, you are welcome to just drop by. My regular office hours are also listed at the top of the syllabus, but for these, I request that you make an appointment in advance; to do so, click here. If you can’t make it during any of our regular office hours, you should send an email that goes to me and the TAs, with an indication of some alternative days/times when you’re free; one of us will get back to you with an appointment. Likewise, if you have a quick question that can likely be answered by email, send it to both me and the TAs; whichever one of us gets to it first will reply. (But before you email us, you might want to look at this.)

Note also that I will sometimes use Blackboard’s “Send email” feature to contact all members of the class. As such, you are responsible for regularly checking your SU email account.

Course Schedule

I. An Introduction to American Constitutionalism

You should use this first week to begin thinking about the fundamental purposes of the U.S. Constitution. Why do we have a constitution? What is it supposed to do?

Tues., Aug. 28: An Introduction to American Constitutionalism. No reading beforehand, but if you’re new to the study of constitutional law, I recommend that you skim GGW pp. 3-27 after class.

II. The Origins of American Constitutionalism

We now turn our attention to the drafting, adoption, and immediate amendment of the U.S. Constitution. We will be referring with some regularity to the constitutional text, so make sure you are familiar with it. (It’s also available here.)

Thurs., Aug. 30: I will be attending the Annual Meeting of the American Political Science Association today. Our class will not meet, but I encourage all students to use this time to begin making headway on next week’s readings and on the civic engagement assignment.

 

Tues., Sept. 4: A Democratic Revolution; and a Retreat

Today, we’ll focus on the period immediately preceding the drafting and adoption of the U.S. Constitution. Be sure to read the Declaration of Independence, which is excerpted at pp. 84-85; if you’re interested, you can read the full text here.

  • GGW, 31-62, 84-85

Thurs., Sept. 6: Drafting the Constitution

Our attention shifts now to the drafting of the constitutional text itself. Try to put yourselves in the framers’ shoes. What problems were they trying to address? How were they trying to do so? Why did they think this would work? Were they right?

Paper option #1 is due today: Compare James Madison’s Virginia Plan (which can be found in GGW, pp. 95-96) with the actual 1787 Constitution (i.e., the original Constitution before any amendments were added). Would it have been better if Madison’s plan had been adopted without change? In other words, did the members of the Philadelphia convention improve on Madison’s initial proposal or did they make things worse? How so? Be specific.

Tues., Sept. 11: Reading the Constitution

Continuing our discussion from last class, today we will take a closer look at the constitutional text that the framers drafted in 1787. No new reading today, but if you haven’t done so already, be sure to read the original Constitution. You can ignore the amendments for the moment; just focus on the original text.

Thurs., Sept. 13: Ratifying and Amending the Constitution

Today, we turn to the Bill of Rights, the name conventionally given to the first 10 amendments to the U.S. Constitution, which were proposed by Congress in 1789 and ratified in 1791. Note that all students must submit at least one paper by today.

Paper option #2 is due today: Compare James Madison’s 1789 speech proposing the Bill of Rights with the text of our actual first ten amendments. Would it have been better if the first Congress had adopted Madison’s proposed amendments without change? In other words, did the members of Congress in 1789 improve on Madison’s initial proposal or did they make things worse? How so? Be specific.

Recommended reading: Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction.

Friday, Sept. 14: At 4pm in Max Aud, Corey Brettschneider will deliver a State of Democracy lecture based on his new book, entitled The Oath and the Office: A Guide to the Constitution for Future Presidents. All students are required to attend the lecture and/or read the book. We’ll have a quiz next week.

III. The Federalist and Jeffersonian Eras

Note that the volume of reading continues to increase, as we turn our attention now to the Constitution’s actual operation, once it was up and running. As you read the assigned pages, note the frequency of conflict over the Constitution’s meaning, even in its first years of existence.

Tues., Sept. 18: Thirteen Independent States or One United Nation?

Our focus today is on early constitutional conflicts regarding freedom of speech and so-called “sovereign immunity,” both of which raised fundamental questions about the relationship between our state and federal governments. The GGW book includes a brief excerpt from U.S. v. Callender (C.C.D. Va. 1800), one of the most controversial holdings enforcing the Sedition Act of 1798; click here if you’re interested in a longer excerpt.

Paper option #3 is due today: Was the Sedition Act of 1798 unconstitutional? If it was inconsistent with the First Amendment, why was it enacted by both houses of Congress, signed by President Adams, and enforced by federal judges, when so many of these office holders (in all three branches) were themselves members of the founding generation? If it was consistent with the First Amendment after all, what lessons does this hold for our understanding of the freedom of speech today?

Thurs., Sept. 20: Judicial Power in the Early Republic

Our focus for today is Marbury v. Madison (1803), which is often described as the case in which the Supreme Court first declared that it had the power to invalidate statutes that are in conflict with the Constitution–i.e., the power of judicial review. Is that description accurate? In addition to the Radiolab podcast linked below, these YouTube videos (here and here) also provide helpful accounts of Marbury.

Paper option #4 is due today: In your own words, briefly summarize Chief Justice Marshall’s argument for the Supreme Court’s power of judicial review. (This might be harder than it sounds. Much of Marshall’s opinion focuses on questions other than the Court’s power of judicial review, so the task here is to focus in on the key passages that are relevant. Since the Constitution doesn’t mention this power explicitly, why did Marshall think the Court was allowed to declare a law unconstitutional?) Once you have figured out (and summarized) that argument, evaluate it. How persuasive does it seem to you? I realize we haven’t gotten very far in constitutional history yet, but what costs and benefits does it seem like this institution might have for the American constitutional system?

Tues., Sept. 25: Presidential Power in the Early Republic

Why do we have a president? In other words, when the framers created this office in Article II of the Constitution, what goals were they trying to accomplish?

  • GGW, 101-109, 185-190

Thurs., Sept. 27: Congressional Power in the Early Republic

Today, we’ll be talking primarily about McCulloch v. Maryland (1819), the single most important decision issued by the Marshall Court. (Yes, more important than Marbury!) As you read McCulloch, think about the implications of Marshall’s arguments about the scope of federal legislative power (i.e., congressional power) for a variety of modern constitutional conflicts. For example, there is a provision in the 2010 Affordable Care Act (aka Obamacare) requiring all Americans to maintain health insurance or to pay a small tax penalty. Did Congress have constitutional authority to enact that provision? Also, since we’re now starting to read a lot of Supreme Court opinions, I thought it might be helpful to read law professor Orin Kerr’s advice to new law students on how to do so.

Paper option #5 is due today: Read Chief Justice Marshall’s opinion in McCulloch v. Maryland (1819). On what basis did he conclude that the federal statute authorizing the creation of a national bank was constitutional? Put another way, where did he find the congressional authority to enact this law? Are you persuaded by his argument? Identify one or more constitutional disputes from your own lifetime for which Marshall’s arguments might have some implications, and spell out those implications.

 

Recommended “reading”: Original cast recording, Hamilton (music, lyrics, and book by Lin-Manuel Miranda).

Tues., Oct. 2: Property Rights and Civil Liberties in the Early Republic

What forms of individual liberty were most important to the framers? How do you know? We’ll spend much of our time today on Fletcher v. Peck (1810), which Zephyr Teachout has argued has continuing negative effects on our political system today? What do you suppose those effects might be? Also, note that today’s readings include some explicitly racist passages from writings by Thomas Jefferson.

Recommended reading: Zephyr Teachout, Corruption in America.

IV. The Jacksonian Era

We turn now to the Jacksonian era–named for President Andrew Jackson–a period during which many of our governmental institutions became significantly more democratic, but the institution of Southern slavery became ever more entrenched. We’ll focus on the shifting power and authority of state and federal legislative institutions and the sharpening of the longstanding constitutional conflict over slavery.

.Thurs., Oct. 4: Slavery and Disunion

The federalism debates of the Marshall era–in cases like McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824)–continued during the Jacksonian era, but they were conducted in the shadow of the escalating slavery conflict. Today, we’ll have more to say about the federal power to incorporate a national bank, and we will also discuss federal power over so-called “internal improvements” (the nineteenth-century version of economic stimulus legislation) and relations with Native American tribes. But our principal focus will be the conflict between federal and state power regarding the recapture of fugitive slaves; as such, pay particular attention to Prigg v. Pennsylvania (1842).

 

Tues., Oct. 9: Slavery and the Bill of Rights

Continuing our discussion of slavery and the Constitution, we turn now to the infamous case of Dred Scott v. Sandford (1857). (The case is excerpted in two different places in the GGW book, with the excerpts focused on two different key issues in the case; an even longer excerpt is available here.) What impact did the institution of slavery have on the status of fundamental civil liberties for slaves, free blacks, white abolitionists, and slave holders? Was the original Constitution “a Covenant with Death, an Agreement with Hell,” as abolitionist William Lloyd Garrison described it in 1844? The assigned pages below include a passage on the Missouri Compromise that we’ve already read, but is worth another look. Note that all students must submit at least two papers by today.

Paper option #6 is due today: Read Prigg v. Pennsylvania (1842) and Dred Scott v. Sandford (1857). Did the increasingly bitter political and legal conflicts over slavery in the 1840s and 50s warp what was otherwise a fair and just Constitution? Or did they reveal fundamental defects in a Constitution that was pro-slavery from the start? Be sure to provide specific references to relevant provisions of the constitutional text and to one or more of the key slavery-related debates from this time (in particular, the debates regarding the regulation of slavery in federal territory and/or the recapture of fugitive slaves).

Thurs., Oct. 11: Midterm Exam. No new reading, but be sure to review everything up to this point.

V. Civil War and Reconstruction

The U.S. Constitution has faced many crises–many historical moments at which it might have fallen apart–but the Civil War of 1860-65 was by far the greatest. How, why, and to what degree did the Constitution survive this crisis? In what ways did it change as a result? Whom should we credit as the “framers” of these changes?

Tues., Oct. 16: Presidential Power during War and Reconstruction

What was the military situation faced by President Lincoln when he took the oath of office in 1861? How did he respond? Would you have done anything differently? What was the political situation faced by congressional Republicans when Lincoln was assassinated? How did they respond? Would you have done anything differently? Note that the assigned pages from GGW are listed non-consecutively below; I recommend completing the readings in the listed order

Paper option #7 is due today: Did President Lincoln act constitutionally when he suspended the writ of habeas corpus in 1861? If not, why did he do it? If so, why did the Chief Justice of the United States object so strongly to the president’s actions? What implications do these questions have for twenty-first century constitutional conflicts regarding the limits of presidential power? Be specific.

Recommended reading: Ari Kelman and Jonathan Fetter-Vorm, Battle Lines: A Graphic History of the Civil War.

Thurs., Oct. 18: A New Birth of Freedom?

The Constitution was fundamentally transformed along multiple dimensions during the period of “Reconstruction” that followed the Civil War. Which such transformations were most significant? Note in particular the passages regarding congressional debate on the Fourteenth Amendment, a longer version of which is available here.

  • GGW, 295-305, 313-323

Tues., Oct. 23: The Lost Promise of Reconstruction

What happened to the promises of liberty and equality that emerged from Reconstruction? Why did the reality fall short of these promises? As you work through the reading, focus in particular on the Slaughterhouse Cases (1873) and Civil Rights Cases (1883).

Paper option #8 is due today: Read the Slaughterhouse Cases (1873) and Civil Rights Cases (1883). What was the central purpose of the Reconstruction Amendments? Did the Supreme Court live up to that purpose in its early interpretations of those amendments? Why or why not? What implications do these questions have for twenty-first century constitutional conflicts regarding civil rights and civil liberties? Be specific.

Recommended reading: Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction.

VI. The Constitution and the Rise of Industrial Capitalism

We turn our attention now to constitutional development in the late-19th and early-20th centuries. GGW refers to this period as “the Republican era,” since the Republican Party dominated the federal government for most of this time. Historians often refer to this period as “the Gilded Age” to emphasize the extravagant wealth of the newly emerging capitalist elite. And Supreme Court scholars often call it “the Lochner era” to emphasize the Court’s protection of economic liberties in cases like Lochner v. New York (1905). Whatever you call it, our primary focus here will be the myriad ways in which the Constitution was reshaped by the rise of industrial capitalism from the late nineteenth century until the onset of the Great Depression. In this context, we will consider the scope of state and federal authority to curtail corporate monopolies, to regulate wages and working conditions, to prohibit child labor, and the like. We will also attend to the constitutional impact of World War I, particularly in the area of freedom of speech.

Thurs., Oct. 25: The Roots of Modern Presidential Power

Recall our earlier discussions of the president’s power to remove executive officials from office. In what ways had this power evolved by 1926? What does this tell us about the development of presidential power more generally?

Tues., Oct. 30: Congress and the Court Confront Industrial Capitalism

As you work through the reading, focus in particular on Hammer v. Dagenhart (1918), in which the Court held that Congress was not constitutionally permitted to outlaw child labor. Note that the readings for today include a graphic description of a lynching.

Paper option #9 is due today: Read Hammer v. Dagenhart (1918). What kind of Constitution would prevent the people’s elected representatives from outlawing child labor? Does the Court’s holding in Hammer indicate some fundamental defect in our Constitution, at least in the Constitution of 1918? What was that defect? Identify one or more modern constitutional conflicts (i.e., conflicts during your lifetime) for which these early-twentieth-century debates have some implications. For example, does Congress have constitutional authority to require all Americans to maintain adequate health insurance or pay an annual tax penalty?

 

 

Thurs., Nov. 1: Democracy and Economic Liberty in the Lochner Era

Note that the assigned pages here cover some material that we’ve already discussed. The 1873 Slaughter-House Cases had a substantial impact on late-19th and early-20th century constitutional development, and they remain the subject of significant constitutional conflict today, so I recommend reviewing them again. We will also turn our attention to Lochner v. New York (1905), a case that is still widely cited to this day, usually as an example of something that courts should avoid doing.

  • GGW, 306-309, 405-413, 420-434

Tues., Nov. 6: A Dark Age for Civil Rights and Liberties?

The Lochner era is most well-known for the Court’s protection of property rights and the liberty of contract, and the standard story is that the courts of this era were unconcerned with other constitutional rights and liberties. Based on the readings for today, does that story seem accurate? Regarding free speech, was the Espionage Act of 1917 different, in any constitutionally relevant respect, from the Sedition Act of 1798? Note also that during this period, the Court got drawn into a number of constitutional disputes arising from the emergence of U.S. imperialism in the late-19th century. When the U.S. military conquers and then occupies foreign territories, do the inhabitants of those territories then gain the protections of the Bill of Rights? Should they? On a related note, do immigrants to the U.S. have all, some, or none of the constitutional rights that U.S. citizens have? Finally, please note that the readings regarding Buck v. Bell (1927) include a description of rape.

Paper option #10 is due today: Read Justice Holmes’ dissenting opinions in Lochner v. New York (1905) and Meyer v. Nebraska (1923) and his majority opinions in Schenck v. U.S. (1919) and Buck v. Bell (1927). In Justice Holmes’s view, what role should the Court play in our constitutional system? Would we be better off if the Court adhered to Holmes’s view today? Why or why not? Be specific. Which particular constitutional conflicts would reach better resolutions today if the Court adhered to Holmes’s view? Which ones would come out worse? Weighing those two categories against each other, how does it balance out?

Thurs., Nov. 8: Civil Liberties During the Gilded Age

Based on the readings today, reassess your conclusions about whether Lochner-era courts were concerned with any constitutional rights besides property rights.

Paper option #11 is due today: What role is the freedom of speech meant to serve in a constitutional democracy? In other words, why is it important for the Supreme Court to protect the freedom of speech? How would Justice Holmes and/or Brandeis have answered this question? Do you agree or disagree? Provide at least one modern example (i.e., an example from your lifetime) of a free speech conflict, and make a case for how that conflict should be resolved according to your theory of free speech.

VII. The New Deal and the Birth of Modern Constitutionalism

In the wake of the Great Depression, the original Constitution was again significantly altered. Some scholars argue that these changes were the most significant since Reconstruction. Unlike that earlier period of constitutional change, however, no formal amendments were enacted this time. How then did these constitutional changes come about? And what exactly were they?

Tues., Nov. 13: The New Deal Realignment and Constitutional Conflict

As you work through the reading, focus on FDR’s vision of the Constitution, as expressed in his speeches that are excerpted in GGW. What was the source of the intense conflict between FDR and the Court?

Paper option #12 is due today: Read FDR’s undelivered speech on the Gold-Clause Cases and his fireside chat on the Court-packing plan. Was the president’s criticism of the Supreme Court justified? Why or why not? Was his proposed Court-packing plan a good solution? Why or why not? What implications do FDR’s arguments have for conflicts about the role of the Supreme Court today? Be specific.

Recommended reading: Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court.

Thurs., Nov. 15: A New Constitution for a New Age

Once FDR finally had a chance to appoint some justices, the Court’s understanding of the Constitution started to shift dramatically. In what ways? Why has there been so much discussion of Wickard v. Filburn (1942) in the past few years? And, once again, what does all this have to do with Obamacare?

  • GGW, 520-526, 545-552

Nov. 20-22: Thanksgiving break. No class. No reading.

Tues., Nov. 27: Nine Scorpions in a Bottle; aka The Birth of Modern Civil Liberties

Read Justice Stone’s opinions in U.S. v. Carolene Products (1938) (including the most famous footnote in the Court’s history) and Minersville v. Gobitis (1940), along with Justice Jackson’s in West Virginia v. Barnette (1943). What sort of role did they have in mind for the Court? Where did these ideas come from? Read Justice Black’s opinion in Adamson v. California (1947) and think about the same questions. How did Justice Frankfurter respond to all these arguments from his colleagues? Note that Feiner v. New York (1951) is the only Supreme Court decision I know of in which the claimant was an SU undergrad.

Paper option #13 is due today: Read Justice Stone’s opinion in U.S. v. Carolene Products (1938) (including footnote number four) and Justice Jackson’s opinion in West Virginia v. Barnette (1943). What sort of role did they have in mind for the Court? Based on what you have learned about the Court’s history up until 1943, how well is the Court likely to perform this role? Provide specific examples.

Recommended reading: Noah Feldman, Scorpions.

Thurs., Nov. 29: Global War and the Constitution

What are the chief impacts of war on the Constitution? We have focused to date on the Civil War and World War I, and we turn now to World War II and the Cold War. Note that all students must submit at least three papers by today.

Paper option #14 is due today: Read Justice Robert Jackson’s concurring opinion in “the steel seizure case,” aka Youngstown Sheet & Tube v. Sawyer (1952). In your own words, summarize his proposed solution for the constitutional problem of constraining executive power. Then evaluate that solution. Does it make sense? Is it workable? Provide specific examples, either historical or hypothetical, in support of your argument.

Tues., Dec. 4: Brown v. Board of Education

In May 1896, the Court held that racial segregation was constitutionally legitimate; in May 1954, it held that racial segregation was “inherently unconstitutional.” What explains this shift? If you’re interested in the GGW excerpts of the 1935 debates regarding civil rights strategy, note that a longer version is available here.

  • GGW, 494-496, 586-590, 594-600

Recommended reading: Michael Klarman, From Jim Crow to Civil Rights.

Thur., Dec. 6: Exam review. No new reading, but your participation self-assessments (described in the Course Expectations section above) are due in class today.

Monday, Dec. 10: From 12:45-2:45pm, we will have a closed-book, comprehensive final examination in our regular classroom.