KC Johnson

History 3410: Lectures & PowerPoints


History 3410

Constitutional Issues in the Obama Era

25 November 2013


I. Politics & Constitutional Affairs

1. Law & Procedure (constitutional amendment through procedure?: McConnell and recognition of rules flexibility; creation of super-majority precedent & its effects: nominations, judges, health care; 2010 elections & aggressive use of redistricting; legal battle over health care law—compromise decision)

2. Citizens United (McCain-Feingold, “soft money,” & political effects; state regulations of corporations; Obama nominations: Sotomayor, Kagan; pro-business approach of Alito/Roberts, 1st amendment absolutism of Kennedy; Obama denunciation; superPACs & effect on 2010/2012 elections; IRS controversy)

3. Shelby County and Beyond (voter ID & other restrictions—role of 2010 elections; Roberts concern about coverage pattern; Verrilli difficulty in arguments; nature of decision—distinction between Section 2 and Section 5; immediate aftermath—Texas, North Carolina; where from here?)

II. Social Issues

1. Marriage, Culture, and the Law (Obama & Proposition 8: role in campaign, African-American support for Prop 8; 2009-11 events; dual court challenges—Olson/Boies and Perry decision; administration and DOMA, House of Representatives intervention; transformation of public opinion polls—path to 2012 elections)

2. The Court & Beyond (significance of Kennedy & Kaganàclues in oral argument; Prop 8 and procedure; Windsor & broad decision; state developments and continued ideological shifts; wave of court filings; but—continued state constitutional amendments; where from here?)

3. Race & Gender (race: contrast between administration rhetoric and judicial filings; gender: 2012 campaign & ‘war on women’—contraception rule, rape in campaign (Akin, Murdock), legal challenges)

III. Secrecy & National Security

1. Rhetoric & Reality Torture (2008 campaign rhetoric; role of Guantanamo; transparency & its limits—torture photos, WikiLeaks and Manning arrest; Libya and presidential authority)

2. The Snowden Revelations (NSA, Patriot Act, and changing technology; Snowden background & leakage through Guardian; effects on Obama; constitutional question—Amash in House, Wyden/Udall in Senate; where from here?)

Bush 2000s PP

History 3410

Bush & Constitutional Affairs

20 November 2013

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)

4. Conservative Turn (abortion rights: Gonzalez v. Carhart (2007); gender discrimination law: Ledbetter v. Goodyear Tire & Rubber (2007); 2nd amendment rights: District of Columbia v. Heller (2008); campaign finance: Davis v. FEC (2008); election law: Crawford v. Marion County Election Board (2008)—significance of Justice Kennedy)


History 3410

Impeachment & Recount

18 November 2013

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)

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History 3410

Constitution & Culture Wars

13 November 2013

I. Gender

1. Feminism (Frontiero case & origin of “intermediate scrutiny”; abortion, right to privacy, and path to Roe; Blackmun decision, Rehnquist dissent; restrictions: path to Hyde amendment: ERA rise & fall: Schlafly and counterreaction to ERA—military, protection of women in labor, class divisions; same with abortion—Catholics, traditionalists, cracks in Democratic coalition; from Webster to Planned Parenthood: surprising outcome, bitterness of Scalia dissent, long-term benefit to conservatives?)

2. Women, Politics, & Constitutional Issues (reaction to Thomas hearings: 1992 Senate races—Moseley-Braun and ouster of Dixon, growing numbers of women in Congress)

3. 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)

II. Gay/Lesbian Rights

1. Strategic Failures (anti-discrimination & public backlash: role of Anita Bryant, plebiscites; sodomy law repeals & path to Bowers; aftermath of Bowers—effect on circuit precedent; public backlash: Amendment 2 campaign)

2. Courts & Congress (Romer v. Evans and significance of Kennedy; limitations on morality in legislation—Scalia challenge in dissent; gay marriage and state constitutions—prospects of legalization?; path to DOMA—overwhelming approval, new precedent)

III. Political Issues

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; 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)

2. Immigration & Ethnicity (Prop 187 (1994) & demise of California Republican Party; Prop 209 (1996) & political weakness of affirmative action; Americans with Disabilities Act)


History 3410

Confirmation Controversies: Bork and Thomas

11 November 2013

I. The New Right and Constitutional Issues

1. The Reagan Coalition (Reagan background; “three-legged stool”: social/religious conservatives—reaction against 1970s, feminism; national security conservatives—reaction against Vietnam, congressional power; economic conservatives—reaction against governmental power, taxes; significance of symbolism—RR addressing pro-life rallies, 1980 Neshoba Co. campaign kickoff)

2. 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)

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)

II. Republicans & the Supreme Court

1. The Center Holds (Ford and Stevens selection; O’Connor appointment and limits of Reagan Revolution)

2. The Court and 1980s Political Controversies Court (substantive moves: “majority-minority” districts and Voting Rights Act—path to Thornburg v. Gingles (1986) and black-Republican alliances in South; race & crime: McCleskey v. Kemp (1987); City of Richmond v. J.A. Croson Co. (1989), limiting affirmative action; 1st amendment: Texas v. Johnson (1989) and broad protection of political speech flag-burning case)

III. The Supreme Court in the Spotlight

1. Bork (Rehnquist and Scalia—Democratic miscalculation & focus on Rehnquist; 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”)

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)


History 3410

Nixon & the Constitution

6 November 2013



I. Strict Constructionism

1. Court Appointments (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)

II. Watergate

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)

III. 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)


3410–warren PP

History 3410

The Warren Court

30 October 2013

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 Warren Court and Civil Liberties

1. Freedom of Belief (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; Epperson v. Arkansas (1968)—9-0, overturning state law mandating teaching of creationism)

2. Political Equality & Freedoms (Baker v. Carr (1962)—6-2, reapportionment; controversy: introduction of Tuck bill and Mansfield/Dirksen bill; platform debate; Wesberry v. Sanders (1964)—7-1-1; Reynolds v. Sims (1964)—8-1, one-man, one-vote)

3. Race & Racism (NAACP v. Alabama (1958)—9-0, freedom of association; Heart of Atlanta Motel v. United States (1964), 9-0, constitutionality of public accommodations law; Reitman v. Mulkey (1967)—5-4, limitations on use of plebiscites to take away rights)

4. Marriage and Liberty (Griswold v. Connecticut (1965)—7-2, right to privacy, state law can’t prohibit married couples from purchasing contraceptives; Loving v. Virginia (1967)—9-0, state laws can’t prohibit marriage between interracial couples)

5. 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; Miranda v. Arizona (1966)—5-4, requirement to advise suspects of right to remain silent, role of White dissent)

III. Backlash

1. The Demise of Fortas (“Impeach Warren” campaign; 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)

2. 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)

3410–civil rightsPP

History 3410

Civil Rights and Civil Liberties

28 October 2013

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; from Birmingham to the March on Washington)

III. 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; 1964 election and path to Voting Rights Act of 1965, Poll Tax amendment)

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History 3410

National Security and Civil Liberties

23 October 2013

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

21 October 2013

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. Depression, New Deal, and the Origins of the American Welfare State

Democratic Race (FDR and national politics; FDR gubernatorial record—Frankfurter, appeal to progressives—regulation, taxation, public power; the New Deal Coalition: 1920s and changing nature of Democratic Party—role of ethnic Democrats; South, Depression, and poverty; FDR and intellectuals—Frankfurter connection, NYC and DC journalists; black migration and Democratic outreach to African-Americans—from DePriest to Mitchell in Chicago; Democratic triumph)

2. FDR and New Deal Ideology (the FDR cabinet; FDR as administrator; 100 Days; three early New Deal tracks: federal spending programs—PWA, WPA, CCC; anti-monopoly revived—regulatory impulse, decline of business’ political clout, FDIC, SEC, “New Dealers” and legal realists, TVA, Glass-Steagall; associationalism—AAA and NRA)

III. The Court & National Politics

1. The Judiciary & 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; Supreme Court response to associationalism— Schecter v. U.S. (1935); U.S. v. Butler (1936))

2.  Second New Deal? (left-wing critics: Huey Long and share-the-wealth; Francis Townsend and old-age pensions; old progressives and reconciling to new era; gearing up for 1936; Long assassination; tackling the public utilities issue; Social Security, Wagner Act, and establishment of modern American welfare state; limits of FDR vision—temporary nature and Morganthau, eclectic management style)

3. 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; United States v. Carolene Products Co. (1938)—deference on economic issues, Footnote Four; 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; path to Wickard)

III. Beyond Economics

1. 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?)

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

16 March 2013

I. Progressivism and the Law

1. Liberalizing the Court (from McReynolds to Brandeis)

2. Civil Liberties (role of Holmes)

3. Other Progressive Amendments (from prohibition to suffrage)

II. Progressivism and Moral Order

1. The War and the Constitution (path to war; politics of war—Wilson & the peace progressives; wartime restrictions: Sedition and Espionage Acts; Schenck v. United States—“clear and present danger” test; responses: role of Justice Department: ACLU and progressives, Debs, La Follette and political realm; Burleson and Post Office; Palmer & First Red Scare; anti-German laws & path to Meyer v. Nebraska)

2. The Collapse of Progressivism (debate over Treaty of Versailles; Articles X, XI, and the Constitution; Russia & Armenia; election of 1920; 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)

3. 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?)

III. Domestic & International Affairs

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; Bluefield Water Works (1923)—Court holds that “unreasonable” rates confiscatory; progressives on the defensive: failure of Child Labor amendment, La Follette and 1924 campaign; progressive triumph: warmaking issues—the Nicaraguan intervention & the Dill amendment)


History 3410

Progressivism and the Law

9 October 2013

I. 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)

II. 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)

Ten of the IDs below will appear on the midterm; you must answer seven of them. Successful answers will have 1 sentence identifying, followed by 3 sentences explaining the significance.

WCTU U.S. v. E.C. Knight Brandeis Brief
Eugene Debs Compromise of 1850 Freedmen’s Bureau
Virginia Resolution virtual representation “higher law” speech
Letters of marque clause Yick Wo v. Hopkins Council of Censors
Wade-Davis bill 12th amendment Roger Taney
Lochner v. New York Insular Cases Kansas-Nebraska Act
Tenure of Office Act U.S. v. Reese Ex parte Merryman
popular sovereignty John Quincy Adams Committee on Conduct of the War
Black Codes Dartmouth College v. Woodward Jay’s Treaty
Federalist 10 John Bingham Civil Rights Cases
Civil Rights Cases Seneca Falls convention Northwest Ordinance
Judiciary Act of 1789 Brutus Thaddeus Stevens
Adair v. United States Ex parte Milligan Webb-Kenyon Act
“rule of reason” test Crittenden Compromise Myra Bradwell


History 3410

Political, Professional, and Constitutional Debates

7 October 2013

I. 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)

II. 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; Jurisdiction and Removal 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.)

Midterm essays—both will appear, you will have to answer one. Successful answers will (a) answer the question with an argument; (b) provide specific historical examples to bolster your claim, including at least 2 specific examples from the reading.

(1) In Federalist 78, Hamilton anticipated that the judiciary would be the “least dangerous” branch of the federal government, at least in terms of its power. Does U.S. constitutional history between 1800 and 1920 confirm or reject Hamilton’s prediction? Use examples from three separate decades in your response.

(2) “Must a government of necessity,” Abraham Lincoln once asked, “be too strong for the liberties of its own people, or too weak to maintain its own existence?” What’s the answer to his question, at least viewed through the prism of U.S. constitutional history in three of the four following decades: the 1780s, 1860s, 1870s, and 1910s?


History 3410


2 October 2013

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 amendment; 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)

III. The Failure of Reconstruction

1. The Failure of Political Leadership (black political participation & Southern politics—15th amendment, Rainey, Revels, black members of Congress; emergence of Ku Klux Klan; federal response: implementing the 14th amendment: implementing the 14th amendment—Enforcement Act [1870], Ku Klux Klan Act [1871], Civil Rights Act [1875]; blueprints for a Republican South; Southern “redeemers” and massive resistance)

2. The Failure of Judicial Leadership (Salmon Chase and the changing nature of the Court; Morrison Waite and diminished interest in civil rights; 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—interstate commerce clause narrowly.

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)

A reminder that all previous lecture handouts and PowerPoints are available on the course website.

3410–civil war

History 3410

The Civil War and Constitutionalism

30 September 2013

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, contrasting reconstruction plans, 13th amendment)


History 3410

The Constitutional Crisis of the 1850s

25 September 2013

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 (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: Strader 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

 23 September 2013

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 (Supreme Court before Marshall, seriatim court; Marshall background; Marbury v. Madison and judicial review; the Constitution and the economy—Dartmouth College; debate over National Bank & road to McCulloch; internal improvements issue—Gibbons v. Ogden; role of Supreme Court; constitutional role of Indians—limitations on Court’s power)

2. The Constitution According to Andrew Jackson (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”; formation of Whig Party—W.H. Harrison and presidency)

3. The Constitution According to John Quincy Adams (government as representative of conscience of body politic: using the law for social reform— anti-slavery movement, Seneca Falls and women’s voting rights, temperance movement, public education; US as exemplar of liberty; celebration of anti-party values; 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; the aftereffects (election of 1848 and repudiation of Democrats; Taylor and unionism)


History 3410

Implementing the Constitution

18 September 2013

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; revenue: Impost Act, Coasting Act, appropriations bills; Compromise of 1790—capital in DC, necessary revenue measure)

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

16 September 2013

I. Writing the Constitution

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

2. Convention Changes (increases in executive power; role of Committee of 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:

  1. Bill of Rights—early A-F attacks, Federalist blind spot, concession: but how comprehensive will rights be?
  2. vagueness
  3. size and nature of representation: legacy of Revolutionary debate—question of virtual representation, 30K figure—how chosen?
  4. consolidation of national power [size and Montesquieu]—Brutus and role of liberty, Madison and Federalist 10
  5. nature and power of judiciary—Hamilton and Federalist 78
  6. insufficient checks and balances—A-F concern with tyranny, distrust of politicians
  7. 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)

3410–constitution PP

History 3410

The Constitution

11 September 2013

I. 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)

II. 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?)

3410–revolution PowerPoint

History 3410

The Revolution and Constitutional Experimentation

9 September 2013

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?)

3410-opening-class PowerPoint

History 3410

Colonial Foundations of Constitutionalism

28 August 2013


email: kcjohnson9@gmail.com

office: Boylan 1127A

I.  The Colonies in the British Constitutional System

1. Challenging British Sovereignty (the theory: Navigation Act [1660] and formal mercantilism; the realities: salutary neglect—charters and proprietors, 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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