Constitutional Law I (Fall 2021)

Class Instructors 
ProfessorTeaching Assistants
Tom KeckKaia Kirk
tmkeck@syr.edukjkirk@syr.edu
(315) 443-5862Alice Timken 
 actimken@syr.edu 
Class SessionsOffice Hours
T, Th 9:30-10:50amM 3-4pm; W 10-11am; Th 1-2pm
Lyman 132via Zoom

Prerequisite: Sophomore standing or permission of instructor.

Class Delivery Format: As of now, our class is scheduled to meet fully in person. If public health conditions necessitate, we may switch to online or hybrid models as the semester proceeds. If/when we do so, our online platform will be Zoom. Zoom will also be our platform for office hours. (During the pandemic, I discovered that Zoom office hours are more effective in some ways than in person, so I’m sticking with it for now.)

If you haven’t done so already, please go to zoom.syr.edu, log in with your NetID to enable your account, and install Zoom on all devices that you will be using to access our online class sessions (if necessary) and office hours. Zoom can be run directly from a web browser, but we may be using some features (such as breakout groups) that work only if Zoom is installed on your device. Zoom links for office hours (and class sessions, if necessary) will be available on Blackboard.

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 these 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 examine 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, freedom of speech, gender equality, and much more. 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.

Learning Objectives

By the end of the semester, all students will have widened and deepened their knowledge of the U.S. 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. (I recognize that not everyone in the class is a citizen of the United States, but most of us are or will be citizens of a democratic or democratizing country somewhere.) 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.

Course Readings

Most of the readings for the course are from the following book, which is available in multiple versions. If you obtain the first one listed below, that is all you will need for both Con Law I this semester and Con Law II in the Spring. It is available only in hard copy and is currently listed as on back order at the SU Bookstore, with no specified delivery date.

  • 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. In the course schedule below, I’ll refer to this one as “GGW 2015.”

As such, we’re also going to make use of the following versions. If you haven’t obtained the version listed above, you can instead use these versions, which are available in ebook format. If you’re able to purchase/rent both of them now, you’ll be all set for both Con Law I and II. If you’re only able to purchase/rent one of them at this time, please get vol. 1.

  • Gillman, Graber, Whittington, American Constitutionalism, vol. I, 3rd ed. ISBN: 9780197527696 (epub). I will refer to this one as “GGW 2021 vol. I.”
  • Gillman, Graber, Whittington, American Constitutionalism, vol. II, 3rd ed. ISBN: 9780197527702 (epub). I will refer to this one as “GGW 2021 vol. II.”

For those of you who haven’t yet obtained any version of the textbook, I have placed a copy of GGW 2015 on 2-hour physical reserve at Bird Library.

Some additional required readings will be available online. The online readings are linked from the online version of this syllabus. The following internet resources may be useful as well:

  • U.S. Supreme Court (official website)
  • SCOTUSBlog (the favorite blog of Supreme Court junkies everywhere)
  • Nexis Uni (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 an assessment of your active engagement with the course material.

In addition, each student must recite from memory one passage from the U.S. Constitution. You’ll need to attend office hours to do so. Since those are happening virtually this semester, we’ll ask you to have your camera on and your eyes closed. 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 failing score for the active engagement portion of your grade.

Three 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 (4) 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 to the readings (including direct quotations), 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 a teaching assistant (TA) before they are due. In addition, please consult my paper expectations guide before completing each assignment.

All papers will be submitted electronically via Blackboard and are due at 9:15 am (i.e., before the start of class) on the date indicated in the schedule. All students must turn in at least one paper by September 14, at least two by October 7, and at least three by December 2; if you turn in four by that last date, 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 paper prompts 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, focus in on a central argument, and support that argument with carefully selected references (including quotations) to the primary sources that appear in the GGW book (and other required readings).

Two exams (12.5% each; 25% total)

We will have a midterm exam in early October and a final exam at the end of the semester. I will provide more details as the semester proceeds.

Civic engagement assignment

Sometime between now and the last day of classes, each student must pick one elected office holder (at any level), reach out to them (via email, Facebook, Twitter, or any other platform), share your views about an issue of your choice (preferably one that has some relevance to our class, broadly defined), do your best to get a response (which may take more than one attempt), and document the exchange for me. If you are a registered voter in the U.S., you should reach out to an office holder who represents you–i.e., who represents the state or district where you are registered. If you are a voter in another democratic country, you should do likewise. If you are not a registered voter anywhere. you should discuss options with me for completing this assignment. Once completed, you can forward any relevant emails and/or screenshots to me at tmkeck@syr.edu, tweet them at me @tmksyracuse, or show them to me or the TA during office hours. If you don’t get a response, just show us your multiple attempts to make contact. Your grade for this assignment will be folded into the active engagement portion of your grade.

Active engagement, in and out of class (15% of your grade)

This portion of your grade will be based on your demonstrated commitment to active engagement with the course material. You can demonstrate this commitment in a variety of ways, detailed below. TL;dr: the closer you come to eating, sleeping, and breathing Con Law over the next few months, the better you will do.

One important component is attendance in class. If you are not physically present, you are missing an important opportunity to talk with the rest of us about the course material. Even when I am lecturing, you will have opportunities to answer my questions and to ask questions of your own. Even a quick question to me on the way out of the classroom can often be a spark for enhanced understanding.

Because the lectures are an important component of our course content, I will sometimes make available audio and/or video recording of them for those who miss class (or who want to review the material a second time). When you’re watching or listening to a recording, you will have the advantage of the pause and rewind buttons, but you won’t have the opportunity to interact. Hence, the recordings don’t help as much for advancing your understanding, and they don’t help at all with demonstrating your engagement. As such, if you miss an occasional class for good reason, the recorded lectures will help you keep up with what you’ve missed. But if this becomes a regular habit, your active engagement grade (and your learning!) will suffer. When you do miss class, you should let me know when and why, and you should record the date and reason for your own records.

In addition to your physical presence, active engagement also requires diligent preparation. Nobody is perfect, but if you regularly complete the assigned readings prior to the relevant class session, your comprehension of the lectures will be enhanced, and you will be in much better position to make thoughtful contributions to class discussion.

We may occasionally have in-class writing assignments (typically unannounced). These assignments will provide additional opportunities for you to demonstrate your engagement with the course material.

Outside of class, I recommend verbally discussing the course material as often as possible, with as many different people as possible. Obviously, you can discuss the material with me or the TAs; we are best situated to answer your questions, and doing so also demonstrates your engagement. But I also recommend discussing it with friends and family as often as they will tolerate; doing so will enhance your own understanding, guaranteed. In other words, you can learn some things by reading the textbook silently in the library, but you will learn more things by reading the textbook and then telling your roommate about what you read. Guaranteed.

Your active engagement 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 this component of the course 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 review 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 TA during office hours?

The TAs and I will read your self-assessment, compare it with our own perceptions, combine those with your performance on the civic engagement assignment and any in-class writing, and then assign you a grade for active engagement.

Course Policies

Attendance policy: 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 access a 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 (even a virtual room), you will be able to see and hear the lecture more reliably, and ask questions when something isn’t clear. As such, irregular attendance will negatively affect your grade both directly (in the active engagement portion) and indirectly (by hindering your performance on exams and papers).

I may spot check attendance on occasion (e.g., by collecting in-class writing), but the primary responsibility for tracking attendance is yours. If you skipped over the instructions for your active engagement self-assessment above, note that they require you to keep track of the dates and reasons of your own absences.

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.

Laptops and other electronic devices: When attending class in person, 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. If it becomes necessary for us to hold class via Zoom, you’ll obviously be using a device, but I still recommend taking notes with pen and paper, and I also recommend disabling email and other messaging apps during class.

Grading policy: Most of the written assignments for this course will be graded by a TA. 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 the TA. 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: Late papers are discouraged, but 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 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. Further details are available from the Center for Learning and Student Success.

Academic integrity: Syracuse University’s Academic Integrity Policy reflects the high value that we, as a university community, place on honesty in academic work. The policy holds students accountable for the integrity of all work they submit and for upholding course-specific, as well as university-wide, academic integrity expectations. The policy governs citation and use of sources, the integrity of work submitted in exams and assignments, and truthfulness in all academic matters, including course attendance and participation. The policy also prohibits students from: 1) submitting the same work in more than one class without receiving advance written authorization from both instructors and, 2) using websites that charge fees or require uploading of course materials to obtain exam solutions or assignments completed by others and present the work as their own. Upholding Academic Integrity includes abiding by instructors’ individual course expectations, which may include the protection of their intellectual property. Students should not upload, distribute, or otherwise share instructors’ course materials without permission. Students found in violation of the policy are subject to grade sanctions determined by the course instructor and non-grade sanctions determined by the School or College where the course is offered, as described in the Violation and Sanction Classification Rubric. Students are required to read an online summary of the University’s academic integrity expectations and provide an electronic signature agreeing to abide by them twice a year during pre-term check-in on MySlice.

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. In this class, an established instance of plagiarism or other violations of the academic integrity policy may result in grade sanctions up to and including a failing grade for the course.

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 Center for Disability Resources (CDR; formerly known as ODS), located in Huntington Hall (443-4498). CDR 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 CDR as soon as possible.

Office hours and email communication: The scheduled office hours appear at the top of this syllabus. They will sometimes be conducted by the instructor, and sometimes by the TAs. This is a large class, but the TAs and I want to get to know as many of you as we can, in order to assist each of you in mastering the course material to the best of your ability. As such, we will often conduct our office hours as a sort of mini-discussion section. Feel free to come with a specific question (e.g., about an upcoming paper assignment), but you can also come just to have some additional conversation about the material covered in lecture. As noted in the course expectations section above, each student must attend office hours at least once in order to recite a passage from the Constitution.

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-all. 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. 31: An Introduction to American Constitutionalism. No reading beforehand, but if you’re new to the study of constitutional law, I recommend that you skim chapter 1 of either GGW 2015 or GGW 2021 vol. I 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., Sept. 2: A Democratic Revolution (But Not for Everyone)

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.

Tues., Sept. 7: 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 2015, pp. 95-96 or GGW 2021 vol. I, pp. 70-72) with the actual 1787 Constitution (i.e., the original Constitution before any amendments were added). For additional background on Madison’s views, note also his “Vices of the Political System” essay, linked below. 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. In addition to this prompt, be sure to also review the paper instructions under Course Expectations above, as well as my paper expectations guide, available here.

Thurs., Sept. 9: 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.

Paper option #2 is due today: Re-read Frederick Douglass’s Fourth of July speech. According to Douglass, was the original Constitution pro- or anti-slavery? Was he right? Support your argument with specific references (including quotes!) to both Douglass’s speech and the constitutional text. In addition to this prompt, be sure to also review the paper instructions under Course Expectations above, as well as my paper expectations guide, available here.

Tues., Sept. 14: 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 #3 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. In addition to this prompt, be sure to also review the paper instructions under Course Expectations above, as well as my paper expectations guide, available here.

Recommended reading: More Perfect (podcast), season 3, ep. 1-3.

III. The Federalist and Jeffersonian Eras

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

Thurs., Sept. 16: 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 #4 is due today: Read the excerpts from the 1798 congressional debates over the Sedition Act (in GGW, or preferably, this longer version here). In your view, was this law constitutional? If not, how do you explain its enactment by both houses of Congress, its signing by President Adams, and its enforcement by federal judges, when so many of these office holders (in all three branches) were themselves members of the generation that drafted the Constitution? If it was constitutional, what lessons does this judgment hold for our understanding of the freedom of speech today?

  • GGW 2015, 133-138, 178-185, 198-202, 212-214 OR GGW 2021 vol. I, 93-99, 150-158 and vol. II, 142-146, 166-167

Tues., Sept. 21: Judicial Power in the Early Republic

Our focus 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 #5 is due today: In your own words, briefly summarize Chief Justice Marshall’s argument for the Supreme Court’s power of judicial review. This task 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?

  • GGW 2015, 88-93, 138-155 OR GGW 2021 vol. I, 57-62, 100-116

Recommended “reading”: More Perfect (podcast), “Kittens Kick the Giggly Blue Robot All Summer”

Thurs., Sept. 23: 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 2015, 101-109, 185-190 OR GGW 2021 vol. I, 84-92, 159-169

Tues., Sept. 28:  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 an annual 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 #6 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? Without doing any outside reading or research, can you identify one or more federal laws enacted (or proposed) in recent years for which Marshall’s arguments might have some implications? Briefly flesh out those implications.

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

Thurs., Sept. 30: 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.

  • GGW 2015, 109-131, 190-198, 202-206, 208-209 OR GGW 2021 vol. II, 99-103, 112-114, 124-126, 134-139
  • Calder v. Bull (1798) (online)

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.

Tues., Oct. 5: 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 federal infrastructure 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).

  • GGW 2015, 176-178, 217-222, 225-226, 231-240, 244-249 OR GGW 2021 vol. I, 175-179, 190-201, 209-215 and vol. II, 209-213

Thurs., Oct. 7: 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 it’s worth another look. Note that all students must submit at least two papers by today.

Paper option #7 is due today: Read Prigg v. Pennsylvania (1842) and Dred Scott v. Sandford (1857), and re-read Douglass’s Fourth of July address. (Note again that Dred Scott is excerpted in two different places in the book; read them both.) Were the pro-slavery decisions of the Supreme Court in the 1840s and 50s the product of a once-fair and just Constitution that had been warped by pro-slavery judges? Or did they reveal fundamental defects in a Constitution that was pro-slavery from the start? Support your argument with specific references (including quotes!) from the constitutional text and from 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). Hint: Search the opinions of Chief Justice Taney and Justice Curtis in Dred Scott (and the speech by Frederick Douglass) for arguments about the original meaning of the Constitution with respect to slavery.

Recommended “reading”: More Perfect (podcast), “American Pendulum II”

Tues., Oct. 12: During our normal class time, we will have a midterm exam. I will provide more details on format as the date gets closer. No new reading for today, 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?

Thurs., Oct. 14: Presidential Power during Wartime: Lincoln & the Civil War

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? Note that the assigned pages from GGW are listed non-consecutively below; I recommend completing the readings in the listed order

Paper option #8 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? Without doing any additional or outside reading, can you think of any implications these nineteenth-century debates might have for twenty-first century constitutional conflicts regarding the limits of presidential power? Be specific.

Recommended reading: Brian McGinty, Lincoln and the Court.

Tues., Oct. 19: 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 section of GGW regarding congressional debate on the Fourteenth Amendment, a longer version of which is available here.

  • GGW 2015, 295-305, 310-323 OR GGW 2021 vol. I, 240-256, 265-271, 274-275 and vol. II, 227-237, 255-261

Recommended reading: More Perfect (podcast), season 3, ep. 5.

Thurs., Oct. 21: 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 #9 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? Be specific. Without doing any additional or outside reading, what implications can you think of that these nineteenth century debates might have for today?

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 19th 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.

Tues., Oct. 26: The Roots of Modern Presidential Power

Recall our earlier discussion of the president’s power to remove executive officials from office. In what ways had this power evolved by 1926? Pay particular attention to the majority and dissenting arguments in Myers v. U.S. (1926), which the justices of the Roberts Court had a sharp debate about in June 2020. What do these 1920s arguments tell us about the development of presidential power more generally?

  • GGW 2015, 369-376, 413-420 OR GGW 2021 vol. I, 298-305, 371-379
  • In re Debs (1895) (online)

Paper option #10 is due today: Read Myers v. U.S. (1926). Which justices had the best account of presidential power under our Constitution? How so? Be specific. Without doing any additional or outside reading, what implications can you think of that these early twentieth-century debates might have for today?

Thurs., Oct. 28: 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 #11 is due today: Read Hammer v. Dagenhart (1918) and reflect on the Court’s holding that the Constitution prohibits the people’s elected representatives from outlawing child labor. Does that holding indicate some fundamental defect in our Constitution, at least in the Constitution of 1918? If so, what was that defect? If not, what alternative explanation do you have for the Court’s decision? Without doing any outside reading or research, can you think of any federal laws enacted (or proposed) in recent years for which these debates are relevant?

Tue., Nov. 2: Democracy and Economic Liberty in the Lochner Era

Note that the assigned pages here cover some material that we’ve already discussed. The 1873 Slaughterhouse 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 2015, 306-309, 405-413, 420-434 OR GGW 2021 vol. I, 357-370 and vol. II, 301-305, 307-318

Thur., Nov. 4: 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 #12 is due today: Read Justice Holmes’s opinions in Lochner v. New York (1905), Schenck v. U.S. (1919), Missouri v. Holland (1920), Meyer v. Nebraska (1923), and Buck v. Bell (1927). (Note that some of these are majority opinions and others dissents, and that for some of them, the excerpts in GGW are quite short.) In Justice Holmes’s view, how extensive of a role is the Court supposed to play in our constitutional system? Put another way, when, if ever, did Holmes think the Court should intervene in ways that frustrate the popular will? (As you try to make sense of his arguments, the terms “judicial activism” and “judicial restraint” may be helpful.) Provide specific references (including quotations) to Holmes’s opinions to illustrate your account. Without doing any additional or outside reading, do you think we would be better or worse off if the Court adhered to Holmes’s view today? Why?

  • GGW 2015, 379-382, 434-446, 451-464 OR GGW vol. II, 294-296, 318-332, 345-351
  • Debs v. U.S. (1919) (online)

Tue., Nov. 9: 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 #13 is due today: Read the justices’ opinions in the Debs, Abrams, and Whitney cases. In your view, 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? Without doing any additional or outside reading, provide at least one current 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?

Thur., Nov. 11: 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 excerpted in GGW. What was the source of the intense conflict between FDR and the Court?

Paper option #14 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.

Tue., Nov. 16: 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?

  • GGW 2015, 520-526, 545-552 OR GGW 2021 vol. I, 430-438 and vol. II, 392-400

Thur., Nov. 18: For now, I’m reserving today’s class session for discussion of any current events that may have arisen this Fall that are directly relevant to our course. This plan is subject to change.

Tue. & Thur., Nov. 23 & 25: Thanksgiving break. No class.

Tue., Nov. 30: The Birth of Modern Civil Liberties

How did Justices Stone, Jackson, and Black envision the Court’s role following the New Deal revolution? (Check out Stone’s opinions in U.S. v. Carolene Products (1938) and Minersville v. Gobitis (1940), Jackson’s in West Virginia v. Barnette (1943), and Black’s in Adamson v. California (1947).) 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 #15 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). In their view, how extensive of a role is the Court supposed to play in our constitutional system? Put another way, when, if ever, did they think the Court should intervene in ways that frustrate the popular will? (As you try to make sense of their arguments, the terms “judicial activism” and “judicial restraint” may be helpful.) Provide specific references (including quotations) to both opinions to illustrate your account. To what extent do you think Stone’s and Jackson’s arguments are a reliable guide to the Court’s exercise of its power?

Recommended reading: Noah Feldman, Scorpions.

Thur., Dec. 2: 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 #16 is due today: Read Justice Jackson’s concurring opinion in “the steel seizure case,” aka Youngstown Sheet & Tube v. Sawyer (1952). In your own words, summarize his account of executive power under the Constitution. Put another way, how did Jackson propose to decide whether a unilateral executive action was constitutional? In your view, does Jackson’s approach represent a useful guide to presidents’ exercise of executive and to the Court’s review of those exercises? Provide specific examples, either historical or hypothetical, in support of your argument.

Tue., Dec. 7: 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 2015, 494-496, 586-590, 594-600 OR GGW 2021 vol. II, 386-389, 455-461

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

Thur., Dec. 9: Exam review. No new reading. Your active engagement self-assessments (described in the Course Expectations section above) are due today.

Mon., Dec. 13, 8-10am: Our course will conclude with a final exam. I’ll provide more details regarding format as the semester proceeds.