KC Johnson

History 3410 Lectures and PowerPoints

History 3410

Contemporary Constitutional Issues

10 May 2011


I. Politics & Constitutional Affairs

1. Election Law (Minnesota and recount; candidates and odd election; state procedures and Franken legal strategy; similarities and differences from Florida; role of state Supreme Court; New Black Panthers case)

2. Constitutional Amendment through Procedure? (history of filibuster; 1970s changes & new culture of Senate; Dole precedents; McConnell and recognition of rules flexibility; creation of super-majority precedent & its effects)

3. Citizens United (McCain-Feingold, “soft money,” & political effects; state regulations of corporations; pro-business approach of Alito/Roberts, 1st amendment absolutism of Kennedy; Obama denunciation; Rove, Crossroads USA, & effect on 2010 elections)

II. Social Issues

1. Race (Jeremiah Wright and Obama Philadelphia speech; de-emphasis; emergence of Ricci case; Sotamayor and circuit court decision; potential backlash)

2. Gender Issues (Obama and grassroots theory of politics; early retreat from FOCA, minor bureaucratic changes; Stupak amendment and health care bill; compromise and Democratic setback; nomination of Kagan)

3. Same-Sex Marriage (Obama & Proposition 8: role in campaign, African-American support for Prop 8; Maine Question 1 and administration silence; court challenge and constitutional issue—Olson/Boies and Perry decision; transformation of public opinion polls; administration and DOMA, House of Representatives intervention)

III. War on Terror

1. Torture (issue in campaign: peculiar positions of Obama and McCain; release of OLC memos; options—prosecution, truth commission, do nothing; international pressure, other lawsuits)

2. Reversals? (Guantanamo promise & quick reversal—poor staff work, polling data, GOP opposition; transparency & its limits—torture photos, WikiLeaks and Manning arrest; Libya and presidential authority)


History 3410

Bush & Constitutional Affairs

5 May 2011

 3410–Bush II

I. The Constitution & The War on Terror

1. Attack & Response (the administration and Al-Qaeda; international response: Afghanistan; domestic response: Patriot Act; bureaucratic response: “unitary executive” theory, expansion of Cheney’s power; structural changes to government: Homeland Security Department debate, 9/11 Commission recommendations)

2. Guantanamo & Its Effects (Yoo/Bybee OLC memos, GOP approach to war; revelations of Abu Ghraib and political fallout; redefining torture & decision for military tribunals; legal challenges—Padilla affair, Hamdi v. Rumsfeld, Hamdan v. Rumsfeld; repudiation of Yoo/Bybee memos; war crimes question)

II. Bush & Domestic Constitutional Matters

1. Redefining the Supreme Court (John Roberts—background, “balls and strikes” metaphor, broad support; Bush and Harriet Miers nomination—weak credentials, ideological concerns, conservative revolt; Samuel Alito—GOP overcomes filibuster, shifting Court to right, long-term impact; Bush & lower-court nominations)

2. Social Issues (gay marriage: Rove political strategy; Massachusetts decision & Kerry nomination; constitutional amendments and maximizing Christian conservative turnout, importance of Ohio; outcome—“moral values,” education, religion; overinterpreting the lesson & the Schiavo case: transformation of American Catholic leadership, significance to Evangelical Protestants, role of Florida GOP leadership, court rulings, special congressional session, Frist “diagnosis,” public reaction)

3. Political Ethics (Texas redistricting: DeLay and 2002 legislative races; Democratic resistance—Perry initial concession, special session, Democrats flee and DeLay involvement, Democrats give in; 2004 results; indictment & resignation of DeLay; Abramoff indictment—Ralph Reed, Bob Ney tie-ins; Fitzgerald investigation—Libby indictment, Rove inquiry, Bush shifting responses; poll collapse)


History 3410

Impeachment & Recount

3 May 2011


I. The Starr Investigation

1. The Original Scandals (Clintons, the McDougals, & Whitewater; limitations of Starr’s efforts: Webster Hubbell as cooperating witness, Rose Law Firm billing records; targeting Arkansas corruption: McDougals and Jim Guy Tucker; Susan McDougall, Hillary before grand jury)

2. The Lewinsky Scandal (Jones and her p.r. supporters; Clinton legal strategy & Clinton v. Jones; the odd friendship of Linda Tripp and Monica Lewinsky; Tripp, Starr, & Jones attorneys; questioning of Monica & perjury trap for Clinton; the story goes public—Clinton denial, Ginsburg’s bizarre behavior, eventual Lewinsky cooperation, Clinton testimonyàpath to Starr Report; backlash: GOP identification with Starr, Gingrich strategy; 1998 election results)

3. Impeachment & Acquittal (Gingrich resignation, Judiciary Committee and Starr testimony; impeachment vote without investigation—“grand jury” theme; Senate/House tensions; rejection of censure; incompetence of House managers—Lewinsky interview; acquittal and legacy)

II. The 2000 Recount

1. The Vote (Florida fiasco: premature calls for Gore, then Bush; premature concession by Gore, then Volusia Co. computer error; recanvass and Gore gain; Dem. frustration: Nader vote, butterfly ballot, Haitians, Harris and voter-roll purge; Harris role in demanding quick certification)

2. Tactical and Legal Decisions (Bush approach: significance of Baker and Ginsberg, importance of p.r. strategy; Gore approach: appeal to Florida courts, partial recounts [Palm Beach, Volusia, Miami-Dade, Broward], initial victory; Gore setbacks: Lieberman and military votes, Miami-Dade and “Brooks Brothers riot,” incompetence in Palm Beach; tactical error: why no statewide recount demand?)

3. The Supreme Court Intervenes (Bush appeal; will Court hear case?; expectations and decision; majority, equal protection, and lack of precedent; bitterness of dissents; short- and long-term impact; who won?; election changes—secretaries of state, felon votes, HAVA)


History 3410

Constitution & Culture Wars

28 April 2011

1990s culture PowerPoint

I. Gender

1. Year of the Woman (Bush legacy—ignoring ADA; Court: Planned Parenthood v. Casey (1992)—surprising outcome, bitterness of dissent, long-term benefit to conservatives?; politics: 1992 Senate races—Moseley-Braun and ouster of Dixon, emergence of Lynn Yeakel, Boxer/Feinstein, Murray; growing numbers of women in Congress)

2. Clinton & Gender (commitment and AG search—appointment of Reno; Ginsburg and Breyer nominations—role of gender, pro-choice litmus test; legal transformation: legacy of Meritor Savings Bank v. Vinson (1986) and “hostile work environment”; rise in EEOC filings; Molinari amendment (1994); merging of law and politics—Packwood, Clinton; GOP Congress and Partial-Birth Abortion Act)

II. Guns

1. Rise of Gun Control (political climate: drug wars, school shootings; effect of Handgun Control; passage of Brady Bill and assault weapon ban; NRA and 1994 election)

2. Aftermath (Rehnquist Court: United States v. Lopez (1995) and beginning of federalist jurisprudence; Printz v. United States (1997)—10th amendment and limitation of Brady Bill; Democratic avoidance)

III. Gay/Lesbian Rights

1. Strategic Failures (aftermath of Bowers; AIDS and political transformation; Clinton and the gay/lesbian community—from gays in the military to DADT, roles of Powell & Nunn; gay marriage and state constitutions—prospects of legalization?; path to DOMA—overwhelming approval, new precedent?)

2. The Court (plebiscite route—educational gap, public opinion; passage of Amendment 2; Romer v. Evans and significance of Kennedy; Lawrence v. Texas (2003) & overturning of Bowers; but private discrimination OK—Hurley, Dale)

IV. Other Cultural Issues

1. Race & Ethnicity (Prop 187 (1994) & demise of California Republican Party; Prop 209 (1996) & political weakness of affirmative action)


History 3410

Confirmation Controversies: Bork and Thomas

14 April 2011


I. Reagan and the Constitution

1. Feminism & Backlash (divorce, ERA, abortion)

2. Economic Issues (deregulation, administrative state)

3. Political Issues (symbolism, race, foreign policy)

II. Republicans & the Supreme Court

1. The Center Holds (Ford and Stevens selection; O’Connor appointment and limits of Reagan Revolution; Rehnquist and Scalia—Democratic miscalculation & focus on Rehnquist)

2. Bork (new political culture: 1986 Senate elections and Democratic surge, effects on Iran-contra; Bork background and Powell significance on the Court; popular resistance and role of Judiciary Committee hearings; Senate vote; long-term significance: Kennedy, “Borked”)

III. The Supreme Court in the Spotlight

1. The Court and Late 1980s Political Controversies Court (race & crime: crime: McCleskey v. Kemp (1987); 1st amendment: Texas v. Johnson (1989) and broad protection of political speech flag-burning case; religion and stretching the Lemon test (Lemon v. Kurtzman (1971); Allegheny County v. PA ACLU (1989) and O’Connor provisions; civil rights: City of Richmond v. J.A. Croson Co. (1989), limiting affirmative action; abortion and Webster v. Reproductive Health Services (1989) and significance of O’Connor)

2. David Souter (learning the lessons of Bork—stealth nominee, personal style, role of Sununu; Democratic frustration and early hints—admiration for John Marshall Harlan; role in Planned Parenthood v. Casey and conservative outrage)

3. Clarence Thomas (selection and reaction; debate over beliefs; emergence of Hill allegations; salvaging the nomination; Democratic incompetence; overshadowing other key constitutional issues of Bush presidency: ADA, reaffirmation of War Powers Act)

4. Spring Break

History 3410

Reagan & the Constitution

12    April 2010


I. Watergate

1. Background (Nixon paranoia, dirty tricks)

2. Watergate (conspiracy unravels, Nixon resignation)

3. Aftermath (news laws—FOIA, campaign finance; changed Congress)

II. The New Right, the Constitution, and Social Issues

1. Feminism (legal front: origins of no-fault divorce—CA 1969, increasing number of divorces; amendment front: ERA and background, seemingly strong support; constitutional front—abortion rights and building run-up to Roe; Blackmun decision, Rehnquist dissent;

2. Backlash (path to Hyde amendment, Schlafly and counterreaction to ERA—military, protection of women in labor, class divisions; same with abortion—Catholics, traditionalists, cracks in Democratic coalition; ERA, abortion, & changes in 1980 GOP party platform; other social issues—gay rights & Anita Bryant, Christian academies and specter of federal oversight; formation of Moral Majority; Baptists, Mormons—fundamentalism and church/state divide)

III. The New Right and Other Constitutional Issues

1. Challenging the Administrative State (Alfred Kahn and movement toward deregulation; Federalist Society, Cato Institute, AEI, and changing nature of legal culture; Gorsuch and EPA; Donovan and Labor; Watt and Interior; Thomas and EEOC; ironies—Sony decision)

2. Political Issues (significance of symbolism—RR addressing pro-life rallies, 1980 Neshoba Co. campaign kickoff, 1984 denunciation of “San Francisco Democrats”; “welfare queen” rhetoric; substantive moves: “majority-minority” districts and Voting Rights Act—path to Thornburg v. Gingles (1986) and black-Republican alliances in South)

3. Foreign Policy Powers (tilt toward executive power: AWACS sale; Lebanon, Grenada, and limitations of War Powers Act, fight against Clark amendment and ultimate repeal; INS v. Chadha and constitutionality of legislative veto; Nicaragua background; debate over contra aid—“procedure-itis” and passage of Boland amendment; Casey and contempt of Congress; mining of Nicaragua’s harbors and Boland II; Iran-contra and its effects—trials of Walsh investigation and attacks on Independent Counsel Act—Scalia in Morrison v. Olson)


History 3410

Watergate & Reaction

7 April 2011



1. The Origins of Watergate (memories of 1960 and origins of cover-up—CREEP and bugging of DNC headquarters; arrest and Nixon attempts to obstruct justice—role of CIA, Pat Gray and leaderless FBI; Watergate in 1972 campaign—McGovern attacks, disputes at Post, Patman inquiry, Nixon victory)

2. The Cover-up Unravels (four-pronged assault on Nixon: press—role of Woodward/Bernstein and eventually Post; lower-level judiciary: importance of Sirica; Senate—Sam Ervin and country lawyering; special prosecutor—Cox’s agenda; Nixon response: invocation of executive privilege)

3. The Fall of Nixon (erratic administration response: Dean, Haldeman, Erlichman dismissed; Agnew resignation; evading subpoenas; Saturday Night Massacre; 18½ minute gap; House Judiciary Committee and impeachment hearings; US v Nixon and Nixon’s resignation)

II. Rights-Related Liberalism

1. Addressing the Constitutional Balance of Power (checking committee chairs, giving junior members more power—removal of Hébert; creation of budget committee, CBO, checking impoundment, importance of information; transparency: open meetings, “sunlight” and “sunset” provisions; campaign finance—disclosure and limitations, path to Buckley v. Valeo; anti-corruption agenda and Independent Counsel Act)

2. Feminism and the Constitution (constitutional front—abortion rights and building off earlier movements; run-up to Roe; Blackmun decision, Rehnquist dissent; path to Hyde amendment; rise of ERA—Paul and National Woman’s Party; opposition from women labor activists—Perkins, Peterson; importance of EEOC; broad initial base, then cultural reaction; Schlafly and public response—military, protection of women in labor, class divisions; same with abortion—Catholics, traditionalists, cracks in Democratic coalition)


History 3410

Vietnam and War Powers

5 March 2011

3410–Constitution and foreign policy, 1964-77

I. Politics of Confirmation

1. Fortas (growing controversy over Warren Court; Senate filibuster)

2. Nixon’s Troubles (Haynsworth, Carswell; selection of Rehnquist)

3. Busing (politics of issue; social classes; limits of civil rights)

II. Vietnam and War Powers

1. Path to Tonkin Gulf Resolution (precedents from Formosa Resolution onwards; earlier administration drafts, O-PLAN 34-A & carrying war to North; DRV first response; did second attack even occur?; introduction and passage of resolution; LBJ anger at Morse & Gruening; Foreman critique)

2. Vietnam & Congressional Resurgence (1965: Senate spectrum of opinion & LBJ parliamentary tactics: military appropriations and the dilemmas of dissent; 1966: Fulbright hearings and their effect; importance of RFK; position of congressional Republicans—1966 election; 1967/8: oversight & spending power, defection of Stuart Symington, Punta del Este resolution)

III. Congress, the Presidency, and International Affairs

1. Challenging Nixon (realpolitik worldview and congressional power; significance of ABM fight; increased willingness to use policy riders, role of MCPL; Cambodia and constitutional crisis: how to interpret Cooper-Church?; transformation of House; rules and pro-military leadership—from Vinson to Rivers; significance of Drinan election; Schroeder, Dellums, and Armed Services Committee)

2. Constraining the Imperial Presidency (foreign policy—War Powers Act and ambivalent nature of congressional revolt; targeting the CIA—Hughes-Ryan, trials of Church and Pike committees, establishment of Intelligence Committees; continued use of appropriations power: Chile—Harrington and Kennedy; Eagleton amendment and frustrations of congressional power; Clark and Tunney amendments)

3. Backlash (Diego Garcia, fates of Clark & Tunney, repeal of Eagleton amendment, Panama Canal Treaty and limits of congressional power)


History 4310

The Politics of the Judicial Confirmation Process

31 March 2011

3410–confirmation politics powerpoint

I. Civil Rights & Backlash

1. The Civil Rights Act (Kennedy bill, transition to LBJ)

2. Civil Rights and Politics (reapportionment; Mississippi events; LBJ and frontlash)

3. Backlash (housing, crime, politics)

II. The Warren Court, Legal Liberalism, & the Fortas Nomination

1. Backlash against the Warren Court (social issues—privacy [Griswold v. Connecticut] & Douglas’ “penumbra” reasoning; crime—reaction to Miranda v. Arizona and White dissent; “Impeach Warren” campaign)

2. The Demise of Fortas (Marshall nomination—significance, political effects; Warren retirement—Thornberry nomination, elevation of Fortas; conservatives and Fortas—Warren Court on trial, ethical allegations; filibuster and Burger appointment; renewed ethics allegations and Fortas resignation)

III. Constitutional Ramifications

1. Strict Constructionists (Fortas resignation; Haynsworth nomination; problems—conflict of interest allegations, segregationist past; role of Bayh, Cooper in defeat; Carswell nomination; perfunctory staffwork; segregationist past; Senate reluctance to challenge nomination; emergence of competence issue—Bayh attacks, reversal rate, Hruska response; Senate rejection; Blackmun nomination; Nixon and Court—the Rehnquist nomination)

2. Busing (legal liberalism and emergence of busing issue; Southern politics and Swann; GOP politics and Detroit case—path to 1972 election; Milliken decision and more conservative Court, role of Marshall dissent; northern targets—Boston and Garrity decision; class politics and South Boston—Louise Day Hicks)


History 3410

Civil Rights Act & Backlash

29 March 2011

3410–civil rights and backlash powerpoint

I. The Civil Rights Era

1. Constitution and National Security (McCarranism, McCarthyism)

2. After Brown (massive resistance; civil rights and 1960 campaign)

3. Kennedy (timidity on moving forward; Oxford; Birmingham)

II. The Civil Rights Act

1. The Kennedy Bill (focus on public accommodations; indecision about tactics; indecision about constitutional justification; provisions—outlaw racial discrimination in public accommodations, give Justice Dept. authority to file suits for school desegregation in federal court, create EEOC; continued legislative obstacles; Kennedy legacy?)

2. Transition to Johnson (legislative skills and “master of the Senate”; political requirements; personal commitment; path through Congress: Rules Committee expansion; Celler weakness and role of leadership; breaking the Senate filibuster—importance of Dirksen, Johnson counsel)

3. Political Rights (conservatives and challenging reapportionment: reaction to Wesberry v. Sanders, Reynolds v. Sims; introduction of Tuck bill and Mansfield/Dirksen bill; platform debate; 1964 election and path to Voting Rights Act of 1965, Poll Tax amendment)

III. Backlash

1. Social Issues & Informal Segregation (California, Rumford Act, and Proposition 14—Reitman and Warren Court overreach?; collapse of biracial civil rights coalition—MLK, poverty and open housing; Daley in Chicago, Agnew in Maryland; Loving v. Virginia (1967) & lack of popular support)

2. Crime (urban riots—Watts as transformative event?; mainstream interpretations—culture of poverty, Kerner Commission; SNCC, CORE, and black nationalism; Black Panthers)

3. Backlash Politics (civil rights activists and aftermath: Freedom Summer and MFDP; LBJ attempts to compromise; Wallace and the development of right-wing populism; from 1964 to 1968; “law and order” and Richard Nixon)


History 3410

Civil Rights and Civil Liberties

24 March 2011

3410–civil rights powerpoint

I. The Constitution and the National Security State

1. World War II (presidential power, civil liberties violations)

2. Decline of Formal Congressional Powers (warmaking and Korea, defeat of Bricker amendment)

3. Civil Liberties and National Security (HUAC, McCarran)

II. From Brown to the Civil Rights Protests

1. The Path to Brown (NAACP Strategy; legacy of Washington/DuBois dispute; Huston and origins of LDF; challenging separate but equal: education—Missouri v. Gaines; Sweatt v. Painter; McLaurin v. Oklahoma; elections—Smith v. Allwright; housing—Shelley v. Kramer; judicial compromises and nature of Brown—significance of Warren appointment; reaction to Brown: Eisenhower and origins of massive resistance; defiance—Little Rock, Virginia)

2. Anti-Discrimination (Montgomery bus boycott & need for bill: Brownell vision, congressional obstacles: House—Rules Committee and Judge Smith; Senate—Eastland elevation and tradition of filibuster; LBJ, political ambition, and path to 1957 Civil Rights Act; significance of Russell; debate over jury-trial amendment; 1960—SNCC, Greensboro, tepid bill; civil rights in the 1960 election)

3. The Kennedy Administration and Civil Rights (Court action and its limits; executive initiative; Kennedy record and political concerns; significance of bureaucracy—Wofford, Marshall, power of Justice Department; forcing the issue—Freedom Rides and role of federal marshals; Meredith and integration of Ole Miss, riots and federal military intervention; shift to Alabama: Wallace and demagoguery; political costs; Birmingham and Operation “C”; role of Bull Connor; sit-ins and boycott; use of children; public and media response; March on Washington)

III. The Warren Court and Civil Liberties

1. Freedom of Belief (Watkins v. United States (1957)—6-1, limitation congressional inquiries; Yates v. United States (1957)—6-1, limitation Smith Act; One, Inc. v. Olesen (1958)—per curiam, writings about homosexuality not necessarily obscene; Engel v. Vitale (1962)—6-1, no mandatory public school prayer; Abington Township School District v. Schempp (1963)—8-1, no school-sponsored Bible reading)

2. Rights-Related Liberalism (NAACP v. Alabama (1958)—freedom of association; Baker v. Carr (1962)—reapportionment; Wesberry v. Sanders (1964)—7-1-1; Reynolds v. Sims (1964)—8-1: one-man, one-vote)

3. Rights of the Accused (Mapp v. Ohio (1961)—6-3, exclusionary rule; Gideon v. Wainwright—9-0, right of counsel; Brady v. Maryland (1963)—7-2, requirement to turn over exculpatory evidence)


History 3410

National Security and Civil Liberties

22 March 2011

3410–national security PowerPoint

I. The New Deal’s Constitutional Order

1. Early New Deal (overturning Taft legacy, anti-monopolism, associationalism)

2. Expanded Agenda (regulatory state, labor, race and cultural issues)

3. Court-Packing (cause and effect)

II. Executive Authority and the National Security State

1. World War II (Japanese-Americans, racist sentiment, and the decision for internment; Court’s response—from Hirabayashi (1943) to Koremastu (1944)—deference to military, significance of dissents; other wartime moves: censorship and role of military, “black appropriations” and Manhattan Project; but also West Virginia State Board of Education v. Barnette (1943); international law and Nuremberg trials)

2. Triumph of Executive Authority (B2H2 resolution; UN and avoiding Wilson’s mistakes—Connally and Vandenberg appointments; postwar atomic energy: May-Johnson bill and military supremacy; McMahon Act and power of FAS; Legislative Reorganization Act; creation of DOD, CIA, NATO; new approach to commander-in-chief; Korea and “police action”; Army-MacArthur hearings and question of civilian supremacy)

3. The Transformation of the Treaty Power (Bricker amendment and question of treaty-making power; Eisenhower, LBJ and defeat; Formosa Resolution/Middle East Resolution and diminution of warmaking power)

III. Civil Liberties and the National Security State

1. HUAC and the Origins of the Second Red Scare (role of politics; role of FBI; Hollywood Ten hearings; existence of real threat exists—Nixon and Hiss, Klaus Fuchs; Truman response—Federal Employee Loyalty Program; fall of China and its effects)

2. McCarranism (McCarran background; internal security as major threat—McCarran-Walter Act, Internal Security Act; creation of ISS; IPR hearings; role of Supreme Court—Hollywood Ten, Smith Act & path to Dennis v. United States (1951), Rosenbergs case (1953))

3. McCarthyism (McCarthy background; initial charges—recycling of HUAC claims and FBI leaks; Declaration of Conscience and failure of a political response; 1950 and 1952 elections; Permanent Subcommittee on Investigations and “subcommittee government”; use of executive sessions; Army-McCarthy hearings; impact)


History 3410

The New Deal and the Constitutional Order

15 March 2011

3410–1930s PowerPoint

I. The Conservative Turn

1. Culture (prohibition, evolution, civil liberties, and backlash)

2. Taft (cult of judiciary, hostility toward labor)

3. Weakness of Progressivism (child labor amendment, La Follette, federalism)

II. FDR’s Constitution

1. The Ideology of the New Deal (overturning the Taft constitutional doctrine—Norris-LaGuardia Act; Brandeis and diversity jurisdiction— role of Black & White Taxicab v. Brown & Yellow Taxicab (1928) and power of Swift v. Tyson; anti-monopoly revived—regulatory impulse, “New Dealers” and legal realists; associationalism—AAA and NRA; Supreme Court response— Schecter v. U.S. (1935); U.S. v. Butler (1936); Morehead v. People of the State of New York (1936))

2. The Court-Packing Scheme (1936 and limitations of FDR agenda; poor preparation and political coalition; proposal and opposition—significance of Wheeler defection; judicial fallout: West Coast Hotel v. Parrish (1937); role of Roberts; appointments power and transformation of Court—Black, Douglas, Frankfurter, Murphy; constitutional fallout—emergence of rights-related liberalism, Thurman Arnold and transformation of anti-monopoly rationale)

3. FDR and Race (traditional view—importance of South, compromises to segregation, Eleanor Roosevelt and Marian Anderson; revisionist view—liberals, NAACP, and Justice Department; lower court appointments; seeding cases?)

III. The Constitution and World War II

1. The Warmaking Power (Article X and congressional warmaking power; Lodge, Borah, and Senate opposition Haiti, the Dominican Republic, and a new mission for the Marines; competing conceptions of international law—Mexico and Article 27; Congress and the appropriations power—the peace progressives and Nicaragua; Dill amendment and its effects)

2. The Path to War (Nye Committee and passage of Neutrality Act; FDR and executive authority—Curtiss-Wright, “quarantine” speech; respecting constitutional niceties—Lend-Lease, Selective Service; avoiding constitutional niceties—Destroyers-for-Bases, Iceland and naval war, unofficial embargo; battle over Ludlow amendment)


History 3410

The Conservative Turn

10 March 2011

3410–1920s PowerPoint

I. Progressivism and the Law

1. Liberalizing the Court (from McReynolds to Brandeis)

2. Civil Liberties (from Paterson to Schenck)

3. Other Progressive Amendments (from prohibition to suffrage)

II. Progressivism and Moral Order

1. The War and the Constitution (wartime restrictions: Sedition and Espionage Acts; role of Burleson and Gregory; Schenck v. United States—“clear and present danger” test; responses: ACLU and progressives, Debs, La Follette and political realm; anti-German laws & path to Meyer v. Nebraska)

2. Other Progressive Amendments (prohibition antecedents; ASL and WCTU; importance of Webb-Kenyon; role of World War I; women’s suffrage—Senate rejection and state route; limited success; wartime moralism, NWP—Paul and amendment)

III. Culture

1. The Collapse of Progressivism (1920s divisions—labor v. NWP; IWW & aftermath of Red Scare; changing nature of immigration law; Sacco-Vanzetti case and civil liberties; incorporation doctrine—Gitlow v. New York (1925); NAACP and defeat of federal anti-lynching law)

2. The Backlash (anti-evolution movement; Scopes trial—Mencken, Darrow and public perception; Volstead Act: urban/rural divisions, rise of organized crime, popular attitudes toward the law; what to do?: political movement; nullification; change Volstead Act; challenge constitutionality of 18th amendment; repeal)

IV. Economics

1. The Constitution according to William Howard Taft (the Taft Court—WHT, Pierce Butler, Sutherland, McReynolds, Willis Van Devanter; conception of role—professionalization and celebration of judiciary; ABA efforts and federal rules of procedure; limiting labor and injunction laws; effects)

2. The Court in 1920s politics (Bailey v. Drexel Furniture (1922)—child labor; Adkins v. Children’s Hospital (1923)—minimum wage; progressives on the defensive: failure of Child Labor amendment, La Follette and 1924 campaign)

3. Federalism (movement away from anti-trust enforcement; gutting of FTC—FTC v. Gratz (1920); movement to state level—question of rate regulation; Southwestern Bell (1922), Bluefield Water Works (1923)—Court holds that “unreasonable” rates confiscatory)

History 3410

Progressivism and the Law

8 March 2011

3410–progressivism PowerPoint

I. Gilded Age Law

1. Gutting Reconstruction (empowering the Court; intellectual path to Plessy; Harlan)

2. The Court and the Corporate Economy (diversity jurisdiction, judicial review, principles)

3. Foreign Affairs (the Philippines and the Treaty of Paris: Hoar and the decline of the anti-imperialists, generational shift?; Insular Cases and “incorporation” doctrine—Downes v. Bidwell (1901), Dorr v. United States (1904); role of Treasury Dept.)

II. Domestic Reform and the Law

1. Changing the Courts (the nature of progressivism; Lochner and the court system; limited scope of reform—Muller v. Oregon; La Follette and roll call reporting; Western progressivism: initiative & referenda (CA model); TR and Bull Moose campaign—overriding judicial decisions?; Norris and progressive reformers in Congress—judicial recall)

2. Changing the Constitution (Bristow and progressive constitutional reformers; the Pollock controversy—White wording, political outcry; Democratic gains and path to 16th amendment; direct election—attraction of campaign finance reform and open government; House pushes issue; Southern concerns; 17th amendment)

3. Changing the Structure (progressivism and the regulatory impulse—Wisconsin as model of state regulation; ICC and origins of regulation; Bureau of Corporations, Food and Drug Act; enforcing Sherman Anti-Trust Act—from Northern Securities Co. v. U.S. (1904) to Standard Oil v. U.S. (1911) and “rule of reason” test; legislative response: FTC and Clayton Act; new issues outpacing the law: utilities, energy, electricity, mass transit; how to regulate—state vs. federal tension)

III. The Contradictions of Progressivism

1. Liberalizing the Court (role of appointments processes; McReynolds and the dangers of hasty nominees; Brandeis nomination and the Senate fight; Clarke and 1916 election)

2. Civil Liberties (social control or civil liberties?; legacy of Comstock Act (1873); freedom of speech and press—censorship laws, Patterson v. Colorado (1907), Fox v. Washington (1915), Holmes and 1st amendment jurisprudence; 1903 immigration law and bar on anarchists)

3. Other Progressive Amendments (prohibition antecedents; ASL and WCTU; importance of Webb-Kenyon; role of World War I; women’s suffrage—Senate rejection and state route; limited success; wartime moralism, NWP—Paul and amendment)

History 3410

Political, Professional, and Constitutional Debates

3 March 2010

3410–gilded age PowerPoint

I. Reconstruction

1. The Agenda (from Lincoln to Johnson; congressional/executive battles?)

2. The Failure (intra-branch squabbles; role of Southern violence)

3. Why? (significance of Court; 1876 as finishing touches)

II. The End of Reconstruction

1. The Election of 1876 (depression, scandal, and the waning of Republican influence; Greeley candidacy; extraconstitutional action; Tilden and the restored Democratic Party; the electoral crisis and the end of Reconstruction; the Redeemers’ New South)

2. Gutting Reconstruction (rise of Jim Crow laws—social pressures, political pressures, extent of apartheid arrangement; from the Civil Rights Cases to Plessy; political attitudes; significance of Harlan dissents)

3. Other Minorities (anti-Chinese activism and Chinese Exclusion Act; role of California politics—Kearney and Workingmen’s Party; Yick Wo v. Hopkins and 14th amendment (1886); women and public sphere—limited voting, but no general suffrage, 1872 S.B. Anthony arrest; divisions among suffrage movement; public/private mix—WCTU and temperance movement, Kansas, South; women and the law—state licensing boards, Bradwell v. Illinois; changing nature of divorce—absolute abolition [S.C.], Dakota Terr. 1887 law & residency issue)

III. Judicial Supremacy: The Economy, Foreign Affairs

1. Political Changes (rise of corporate structure and changing conception of corporations; corruption: state governments, scandals, and railroad boom—paying off bonds; congressional government—Credit Mobilier, “Millionaires’ Club”; consolidating power and congressional leadership—role of Blaine and Reed; presidencies and patronage—remoteness of federal government)

2. The Courts & The Economy (growth of legal profession—law as neutral force; creation of ABA; growing Supreme Court activism; expanded number circuit courts; incorporation law and federal jurisdiction—importance of diversity rule; Judiciary Act of 1875)

  • Santa Clara v. Southern Pacific Railroad (1886, corporations as persons under the 14th amendment);
  • Pollock v. Farmers’ Home and Trust (1895, income tax);
  • U.S. v EC Knight (1895, protecting corporations);
  • In re Debs (1895, harming labor)

3. Imperialism and Foreign Policy (beyond Buchanan: congressional power—Alaska, Dominican Republic, Nicaragua, and the Senate anti-expansionist consensus; bypassing constitutional niceties—Hawaiian annexation; respecting the warmaking clause—Teller amendment; the Philippines and the Treaty of Paris: Hoar and the decline of the anti-imperialists, generational shift?; Insular Cases and “incorporation” doctrine—Downes v. Bidwell (1901), Dorr v. United States (1904); role of Treasury Dept.)

History 3410


1 March 2011

3410–reconstruction PowerPoint

I. The Constitution and the Civil War

1. Constitutional Revolution? (significance of abolition, growth federal power)

2. Lincoln and the Presidency (Clay and Adams models; contradictory legacy)

3. Unresolved Issues (nature of reconstruction, scope of civil equality)

II. The Promise of Reconstruction

1. The Basic Questions (what were the Union’s war aims?; role of race: is the 13th amendment enough? What is the obligation of the federal government to the former slaves?, economic vs. political rights; role of war: was the “conflict” a “war”?; role of federalism: can the Constitution survive the Civil War?, issue of military government vs. states’ rights; future of Republican Party: economic vs. ideological interests)

2. From Lincoln to Johnson (interpreting Lincoln’s plan for Reconstruction; legacy of Union Party; Johnson political background and role of race; former rebels and postwar Congress; Black Codes and Southern policies; constitutional theories—national or federal government?; Freedmen’s Bureau and the limits of Washington’s power)

3. Reconstruction Agenda (historiography; demographic situation in the South; overpowering the President: Civil Rights Act of 1866; empowering the Radicals—1866 election, role of Stevens; going around the President—14th and 15th amendments; military governments—Reconstruction Act of 1867)

4. Constitutional Crisis (Tenure of Office Act, Johnson, and Stanton; House impeachment; Senate trial and acquittal; ramifications—weakening of Radicals, politicizing impeachment?, significance of Wade; Grant election, but limits of victory)

III. The Failure of Reconstruction

1. Rise & Fall of Political Equality (black political participation & Southern politics—Rainey, Revels, black members of Congress; emergence of Ku Klux Klan; federal response: implementing the 14th amendment—Enforcement Act [1870], Ku Klux Klan Act [1871], Civil Rights Act [1875]; Southern “redeemers” and massive resistance)

2. The Failure of Judicial Leadership (Salmon Chase and the changing nature of the Court; tensions between states’ rights and national power, between economic and political rights)

  • Slaughterhouse cases [1873] and limiting the scope of the 14th amendment;
  • Cruikshank [1876] and gutting the Enforcement Act;
  • U.S. v. Reese [1876] and gutting the 15th amendment (no right to vote);
  • Hall v. DeCuir (1877) and constitutional Catch-22;
  • Civil Rights Cases [1883] and upholding states’ rights

3. The Election of 1876 (depression, scandal, and the waning of Republican influence; Greeley candidacy; extraconstitutional action; Tilden and the restored Democratic Party; the electoral crisis and the end of Reconstruction; the Redeemers’ New South)


History 3410

The Civil War and Constitutionalism

24 February 2011

3410–civil war PowerPoint

I. Constitutional Crisis of the 1850s

1. Why Then? (breakdown of party system; legacy of Mexican War)

2. The South’s Phyrric Victories (Kansas-Nebraska, violence, Dred Scott)

3. Buchanan’s Failed Constitutional Revolution (foreign policy to executive; domestic policy to courts)

II. Pressing Issues

1. Legacies (election of 1860; Crittenden Compromises; was there a constitutional way to avoid the Civil War?; Lincoln and the Court: legacy of Taney; Merryman and executive defiance; Supreme Court sensibilities)

2. Expanding Governmental Power (Lincoln and executive authority: moving beyond traditional Whiggery—J.Q. Adams model; the Constitution in civil conflict: habeas corpus and martial law; Vallandingham case and question of congressional power; draft law and its inequities; growth of federal government; spoils system and civil service; state executives)

3. Congressional Response (the Union government in civil conflict: Homestead Act, Land Grant College Act, Pacific RR Act; importance of Thaddeus Stevens and congressional leadership; more efficient Congress; government and the economy; Joint Committee on Conduct of War—mission and legacy)

III. The Issues Ahead

1. The Civil War and International Law (blockade; Prize Cases—allowing blockade; neutral rights and the Trent affair; belligerency status and question of foreign recognition of CSA; King Cotton diplomacy and its limitations; does international law matter?)

2. The Aims of War (war for union or war for abolition?; African-Americans and US society; interpreting the Emancipation Proclamation; Congress and DC—limited embrace of freedom)

3. The Limits of Change (Union Party and political limits of change—McClellan and 1864 campaign; interpreting Lincoln’s plan for Reconstruction—Ten Percenters; Wade-Davis as alternative—50% white males, black voting, Lincoln pocket veto; Civil War as de facto constitutional revolution?; Chase as Chief Justice, ex parte Milligan and Supreme Court reassertion of power)

4. From Lincoln to Johnson (Johnson political background; role of racism; former rebels and postwar Congress; 13th amendment test; Black Codes and Southern policies; Johnson, moderate Republicans, and radical Republicans; constitutional theories—national or federal government?; Freedmen’s Bureau and extending the limits of Washington’s power)


History 3410

The Constitutional Crisis of the 1850s

22 February 2011

3410–1850s PowerPoint

I. Slavery, Union, and the Constitutional Order

1. Whig Constitutional Culture (veneration of Constitution, role of law, executive authority, social reform)

2. Revival of Congress (the “great triumvirate”; Mexican War dissents)

3. The Constitution and the Second Party System (strains of Mexican War)

II. Constitutional Polarization

1. Last Gasp of the Whigs (election of 1848, emergence of Free Soilers, and repudiation of Democrats; Taylor and unionism; sectionalism and breakdown of political system; Taylor death, Clay revival, and Compromise of 1850; Seward and “higher law”)

2. Pierce and the Disruptive Presidency (collapse of the Whigs; Pierce and a bisectional Democratic Party; Kansas-Nebraska Act: Douglas and origins; Douglas arguments; opponents’ response and significance of moral framing)

3. Bleeding Kansas (political realignment—collapse of Northern Democrats in 1854 elections, birth of Republican Party—collapse of Whigs, role of Know-Nothings, Republicans as constitutional coalition; political violence—caning of Sumner, celebration of Preston Brooks, John Brown and constitutional radicalism; Kansas civil war—Northern abolitionists against Atchison forces; fraud and pro-slavery Lecompton government; Pierce response)

III. The Constitution According to James Buchanan

1. Redefining the Separation of Powers (Buchanan background, foreign policy vision; problems—erratic nature of Congress, peripheral pressures—Ostend Manifesto, filibustering; constitutionalism and Buchanan’s international agenda: pressing the British on Clayton-Bulwer, annexationism in Mexico; Paraguay debate and Collamer amendment; $30 million bill; use-of-force bill; the effects of Buchanan’s failure)

2. Dred Scott and American Democracy (central questions—can blacks be citizens?; can slavery be prohibited in territories?; jurisdictional issue: Stader v. Graham (1851); Taney background: Jacksonian Democrat, Charles River Bridge case; Buchanan and framing the issue; Buchanan inaugural address and political deal; Taney ruling and constitutional breadth; Court attack on Republican platform, Republican attack on Court; Lincoln-Douglas debates)

3. Election of 1860 (collapse of Democratic Party and Southern assertiveness; emergence of Constitutional Union; Lincoln as moderate Republican; narrow band of states in play; dual elections and road to secession)


History 3410

Slavery, Union, & Constitutionalism

17 February 2011

3410–slavery-union PowerPoint

I. The Federalist/Jeffersonian Legacy

1. Establishing the Constitution (constitutional dilemmas—the Judiciary Act, the party system, treatymaking power)

2. Civil Liberties (freedom of speech, VA/KY Resolutions)

3. Jeffersonian Dilemmas (presidential power, no strict constructionism)

II. Competing Conceptions of Constitutionalism

1. The Constitution According to John Marshall (Marbury v. Madison and judicial review; the Constitution and the economy—Charles Bridge, Dartmouth College; debate over National Bank; internal improvements issue; role of Supreme Court; constitutional role of Indians—limitations on Court’s power)

2. The Constitution According to Andrew Jackson (1824, the collapse of the caucus, and the “corrupt bargain”; growing sectional tensions—Burr conspiracy, Hartford convention, Missouri Compromise and changing demographic patterns; Jackson and national identity—political campaigning, spoils system, nullification controversy; Jackson and states’ rights—BUS, internal improvements, “King Andrew”)

3. The Constitution According to John Quincy Adams (government as representative of conscience of body politic: using the law for social reform—Seneca Falls and women’s voting rights, temperance movement, public education; US as exemplar of liberty; celebration of anti-party values; anti-slavery movement; hostility to executive power & reverence for Congress: fight against “gag rule”)

III. The Constitutional Dilemmas of the Mexican War

1. The Run-up to War (the Texas revolt, Texas independence, and the slavery issue; periphery, federalism, and warmaking power; constitutional niceties: John Tyler, domestic politics, and the annexation of Texas; Conscience Whigs and “Slave Power” conspiracy; Polk, Clay, and expansionism; the Mexican War and the commander-in-chief power)

2. The Controversies (war declaration: expansion of gag order; guerrilla tactics—Adams, Giddings, and power of purse; radical Whig reconception of Unionism; political implications; Wilmot Proviso: does Congress have power to forbid slavery in territories?; alternatives—Wilmot, Buchanan, Cass, Calhoun; revival of treatymaking power—Guadalupe-Hidalgo, Hise Treaty, Yucatan)

3. The Aftereffects (election of 1848 and repudiation of Democrats; Taylor and unionism—admission of California; sectionalism and breakdown of political system—1849 election for House speaker; Taylor death, Clay revival, and Compromise of 1850)


Implementing the Constitution

15 February 2011


I. Debating the Constitution

1. Unresolved Issues (slavery and race; presidential and judicial power; role of parties)

2. The Process (significance of Pennsylvania debate; interpreting the Anti-Federalists)

3. The Issues (Bill of Rights; vagueness; nature of representation; size of a republic; nature and power of judiciary; insufficient checks and balances; nature of military)

II. Establishing the Constitutional Structure

1. The First Federal Congress (historiographical debate: legislature or continuation convention?; elections and more nationalist cast; Judiciary Act of 1789—3-tier federal court system; Section 9—federal courts have jurisdiction on authority of US; Section 25—specifying appeals from state courts to federal courts; Section 34—diversity of jurisdiction)

2. Constitutional Dilemmas (foreign affairs: treatymaking clause and role of Senate—limitations of “advise” power; runup to Jay’s Treaty; House and Jay’s Treaty aftermath; Washington and Whiskey Rebellion; domestic powers: Hamilton and national debt, executive power-Compromise of 1790 (state debts, Washington DC), creation of Bank of United States; 1796 and formation of two-party system—election of Adams & Jefferson; Adams and undeclared naval war with France; party system; Alien and Sedition Acts—judicial review and VA/KY Resolutions; Jeffersonian responseà1800 election and issues)

III. The Constitutional System Functions . . . sort of

1. The Washington System (“government at a distance and out of sight”; small size; transient membership; boardinghouse system; rise and demise of presidential leadership; limitations on presidential power; continuing anti-power attitudes)

2. Foreign Affairs (Jefferson and “strict constructionism”; Jeffersonianism and “empire of liberty”—McCoy thesis; Barbary Wars and presidential power foreign affairs; LA Purchase and “loose constructionism”; the trials of the Embargo Acts; Madison, foreign affairs, and separatism; Latin America: private agents, Monroe Doctrine)

3. Elections (rise and demise of first party system; 12th amendment and the troubles of Electoral College; the “Caucus” and getting around the College; cabinet government and its limitations; 1824, the collapse of the caucus, and the “corrupt bargain”)

4. Why the Executive Predominance? (legacy of colonial and Revolutionary eras; increasing professionalization of U.S. foreign policy; French Revolution wars and tangible threat to the national security;. intimate link between international issues and the first party system)


History 3410

Debating the Constitution

10 February 2011

3410–ratification PowerPoint

I. Writing the Constitution

1. Intellectual Advances (purpose of Senate, nature of republican executive)

2. Convention Changes (increases in executive power; role of Committee on Style)

3. Legacy of Compromise (political pragmatism, lessons of past, slavery)

II. The Ratification Debate

1. The Process (ratification conventions; PA and DE; significance of Pennsylvania debate—James Wilson, “Dissent of the Pennsylvania Minority”; formation of Federalist and Anti-Federalist blocs)

2. Interpreting the Anti-Federalists (middle class vs. elites?; “men of little faith”; proponents of states’ rights; idealistic republicans—inheritors of revolutionary spirit; libertarians; forerunners of modern-day conservatives?; forerunners of modern-day populists?)

3. The Nature of the Contest (early Federalist victories; Massachusetts and role of Hancock—introduction of amendments; New York and Virginia showdowns)

4. The Issues:

  • Bill of Rights—early A-F attacks, Federalist blind spot, concession: but how comprehensive will rights be?
  • vagueness
  • size and nature of representation: legacy of Revolutionary debate—question of virtual representation, 30K figure—how chosen?
  • consolidation of national power [size and Montesquieu]—Brutus and role of liberty, Madison and Federalist 10
  • nature and power of judiciary—Hamilton and Federalist 78
  • insufficient checks and balances—A-F concern with tyranny, distrust of politicians
  • nature of military—what is a Standing Army?; Brutus dissents; national security & Feds

III. Legacy

1. Why the Federalists Won (did they?; framing the debate; disunity among Anti-Federalists; amendment agreements)

2. Lessons of Ratification (new approaches: regular army viewed as benign; concept of dual sovereignty possible; reexamination paradigm of republicanism regarding size of state and virtue of people; rejection of basic premises Revolutionary political culture?: fear of power, conviction that all free states degenerate, goal of government to protect individual rights)

3. Bill of Rights (Madison and first federal Congress; structural decisions: how to assemble? Where to place?; differing types of amendments—original understanding?; unratified amendments)


History 3410

The Constitution

8 February 2010

3410–constitution PowerPoint

I. The Revolutionary Legacy

1. Classifying the Articles (intersection b/w executive and legislative powers; movement toward legislative powers and its effects)

2. The Articles as a National Government (foreign policy powers; treaty enforcement)

3. Constitutional Experimentation (unicameralism, Council of Censors, etc.)

II. The Constitutional Convention

1. The Framers and Their Motives (framers’ intellectual and professional backgrounds; economic self-interest?; strategic or ideological concern?; nationalism; youth and generational split; theory or politics at the convention?)

2. The General Structure (federalism and nationalism; initial VA Plan and powers to national government; alternatives—NJ Plan and tilt toward smaller states, Hamilton approach and powerful national government; revisions—specified powers and origins of Article I, Sections 8—but how to interpret “necessary and proper” and “general welfare” clauses?; maintain authority of state powers; balance and check enumerated powers; result: principle of dual sovereignty; last-minute change by Committee on Style; Sept. 17—final vote: 39 yes, 3 no)

III. The Constitutional Dilemmas

1. The Character of the Senate (Senate as House of Lords to Senate as corporate body representing states; origins of CT Compromise and increased (revenue origination) power to House; role in legislative makeup; Senate and foreign affairs powers)

2. The Character of the Executive (central question: how to create republican executive without being quasi-monarchical?; two central questions: who chooses the executive, and how many should there be?; choosing—initial plan for Congress, concern with factionalism and foreign powers—Polish example; separation of powers issue and need for stronger executive; distrust of populace; emergence of Electoral College; how many?—dangers of unitary executive; plural executive and historical lessons of Articles; system to create moderation)

3. Foreign Affairs (key issues: treaties, war, Indians; initial conception of Senate—lesson of Articles; can Senate carry out diplomacy?; the Continental Congress, John Jay, and foreign affairs; war power—President as commander-in-chief and initial meaning; transition from “make” to “declare” war; letters of marque clause; the framers’ conception of international warfare; defense issues)

4. Slavery (liberty and revolutionary legacy—movement toward abolition in Northern states; slavery and Southern economy; compromises—3/5th clause, fugitive slave, slave trade; what were framers’ expectations?)


History 3410

The Revolution and Constitutional Experimentation

3 February 2010

3410–revolution PowerPoint

I. The Colonial Legacy

1. Salutary Neglect and the Laws of Political Science (unitary authority, mercantilism, international independence)

2. Collapse of the De Facto System (1763 and new North American balance of power; new financial order; shortcomings of virtual representation)

3. Explaining the American Response (radical Whigs; strategic legacy; British errors)

II. The Revolutionary Dilemma

1. Unresolved Questions (constitution’s fundamentality; executive authority and legislative tyranny; question of rights; purposes of constitutions; questions of balance: maintain bicameralism—questions of apportionment and qualifications; separation of functions—what is role of legislature? Should executive and judicial power be checked? Is separation of powers appropriate—rejection of Montesquieu?; personnel question—danger of plural officeholding; beginning of movement toward tolerance—religion)

2. The State Constitutions (PA 1776: unicameral legislature, rotation and annual election, Council of Censors; permutations; MA 1780: declaration of rights, bicameral legislature and resolving question of Senate, governor w/apptment. powers)

3. The Articles in Theory (executive or legislative body—inheriting King’s authority?; haphazard nature of construction; rotation, states rights’ and voting system; states’ rights and allocations; opposing views: Dickinson and limitations on states; Morris and public debt)

4. The Articles in Practice (factionalism, turnover, committees, and attendance; intercolonial disputes—Western lands; creation of executive departments—Robert Morris; highlighting legislative weakness; permutations of taxation)

III. Toward the Constitution

1. Revolution and International Law (from a treaty system to a colonial system; Model Treaty and creation of precedent?; Congress and international authority—the Deane Mission; Livingston, Jay, and executive authority; Jay-Gardoqui Treaty and intersection between domestic and international constitutional structure)

2. Revising the Articles (problems: economic interest groups; international commerce and foreign affairs power; domestic businessmen and need for full faith and credit, consequences of legislative majoritarianism; diplomatic activists—sense of crisis; role of Shays’ Rebellion; legacy of Northwest Ordinance)

3. The Framers and Their Motives (intellectual and professional backgrounds; economic self-interest?; strategic or ideological concern?; nationalism; youth and generational split; theory or politics at the convention?; was Constitution inevitable?)


History 3410

Colonial Foundations of Constitutionalism

1 February 2010


3410–opening class PowerPoint

I.  The Colonies in the British Constitutional System

1. Challenging British Sovereignty (the theory: Navigation Act [1660] and formal mercantilism; the realities: salutary neglect—the British colonial bureaucracy, distance and its effects, political bargaining, strategic tensions in the Western Hemisphere in the 18th centuryàthe decline of Spain and its effects—Cuba, Caribbean Basin, genesis of Albany Plan and challenge to imperial thought; the informal constitutional system and laws of political science—Montesquieu and unitary authority, mercantilism and power of colonies, international law and role of formal statecraft)

2. Collapse of the De Facto System (1763 and new North American balance of power: demise of French, rise of Indian nations, pressure of colonists; colonies and international law—the trials of the Western treaty system; new financial order: cost of war, British politics, shortcomings of virtual representation—British and American sides)

3. British and American Responses (Stamp Act and question of taxation: role of Parliament; Declaratory Act (1766) and British politics; unitary nature of power and formalization of dominion status)

4. Why the American Response? (Bailyn and ideological origins—role of radical Whig writings in Britain; strategic legacies—Louisburg, Western lands and Indians; British indecisiveness)

II. The Road to Revolution

1.  Hopes for Compromise (role of Franklin; all-or-nothing debate on sovereignty; Continental Congress and constitutional revisions—King-in-Parliament; separation of state from government—distinction of constitution from government)

2. Tom Paine as a Constitutional Theorist (Common Sense and argument for independence; internationalism and the American Revolution; Declaration of Independence and culmination of colonial debates; return to ancient ideal)

3. The Early State Constitutions (new theories of government: authorization by lower entities; consent built into structure at every level; state no longer monopolistic power doling out liberties; constitutions as external to governments; how to establish constitution’s fundamentality?—assemblies, referenda, special conventions; road to PA)

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