Lecture Notes–Constitutional History
History 432
Contemporary Constitutional Issues
May 14, 2009
I. Constitutional Issues in the Election
1. Blagojevich & Burris (legacy of 16th amendment; states and procedures; Illinois and political corruption; “white-collar crime spree”; defiance and appointment of Burris; Rush and “lynching”; Democratic cave-in; Burris polling)
2. Minnesota Senate Race (Election Night outcome and Minnesota procedure; candidates’ differing political/legal strategies; canvassing board result; question of absentee ballot rejections; Coleman decision to file contest—filibusters and significance of seat; peculiar legal strategy; equal protection: is Bush v. Gore a precedent?)
3. Proposition 8, California (Marriage Cases decision and classification of gays and lesbians as suspect class; early polling and Yes on 8 counterattack—schools, religion; No on 8 and African-Americans; court challenge and constitutional issue)
II. Constitutional Questions since the Election
1. Social Issues (gay/lesbian rights: Obama in campaign; Iowa, VT, ME, NH actions; constitutionality of DOMA; retreat on DADT; lesbian justice?; race: Jeremiah Wright and Obama race speech; de-emphasis; emergence of Ricci case; politics, threat of lawsuits, and constitutionality; Sotamayor and circuit court decision; potential backlash)
2. Torture Memos (issue in campaign: peculiar positions of Obama and McCain; Reagan and International Convention on Torture; ACLU lawsuit and release of memos; options—prosecution, truth commission, do nothing; international pressure, other lawsuits; potential ramifications)
History 432
The Constitution & the War on Terror
May 12, 2009
I. Recount (con’t.)
1. Tactical and Legal Decisions (significance of Harris; 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)
2. 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)
III. Confronting Al-Qaeda
1. The Constitution before 9/11 (Gorelick memo: “wall” between FBI and CIA; Ramsi Yousef case and law-enforcement option; Clinton creativity and administration divisions; 1990s conservative critiques—battle between originalists and advocates of unitary executive theory)
2. Response (power of Vice President; key early decisions: PATRIOT Act and expanding presidential power; civil liberties, FISA, and warrantless wiretaps; battle over Homeland Security Department; detainees: Guantanamo/no Geneva Conventions; “enhanced interrogation” through CIA; OLC memos; (lack of) congressional oversight; motivations?)
IV. Bush & the Constitution
1. Politics and the Law (church/state: Bush background, faith-based initiatives and “compassionate conservatism,” vouchers and confronting the education lobby, political effects of Schiavo case; race: CIR and preparation of constitutional challenge, Grutter and effects, NCLB; same-sex marriage: Lawrence v. Texas and Scalia dissent; Goodridge decision, Rove and state constitutional amendments—OH, KY, OR, long-term effects?; Justice Department: Gonzales conception of AG’s role, vote-fraud cases and U.S. Attorney dismissals, response to CIA leak scandal)
2. The Courts (avoiding mistakes of his father; thoroughness of vetting; O’Connor resignation and selection of Roberts; Rehnquist death and Miers miscalculation; “Gang of 14” and “nuclear option”; Alito appointment; long-term effects?)
History 432
Impeachment & Recount
May 7, 2009
I. 1990s and Constitutional Controversies
1. New Appointments (Souter and Thomas controversies; Ginsburg and Breyer)
2. Cultural Battles (Year of Woman and expanded conception of sexual harassment; rise and fall of gun control movement)
3. Gay/Lesbian Rights (from Bowers to Romer; DOMA and its effects)
II. Impeachment
1. The Clinton Scandals (Clinton problems: (1) “vast right-wing conspiracy”—not really vast, but committed and well-funded; (2) difficulties with Justice Department—Reno and independent counsels, Whitewater and decision to appoint, from Fiske to Starr; (3) Starr—background and partisanship, difficulties of inquiry, merging with Jones case; Tripp and perjury trap; unpredictable public reception; bungling of Lewinsky deal and Clinton counterattack; Clinton grand jury testimony; Starr Report and 1998 elections; Gingrich resignation and emergence of DeLay)
2. Impeachment (Hyde and the trials of the House Judiciary Committee; possibility of censure and decision to proceed with impeachment; GOP tactical blunders—Schippers, “perjury ladies”; Starr testimony and Frank dissection—admission of no wrongdoing Travelgate, Filegate; party-line votes and “grand jury” theme; House vote and decision to drop perjury charge)
3. Trial (incompetence in House managers and Senate trial; Senate distaste; effectiveness of Clinton counsel; final vote and Specter “not proved”; legal and political effects)
III. Recount
1. Election Night & Beyond (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)
History 432
Constitutional Controversies: The 1990s
May 5, 2009
I. Reagan & the Constitution
1. Challenging the Administrative State (new ideas; appointees)
2. Foreign Policy Powers (tilt toward executive power)
3. Court Nominees (O’Connor, Scalia/Rehnquist, Bork/Kennedy)
III. Court Controversies
1. Reagan-Era Court (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; divisions in civil rights coalition and reinterpreting Civil Rights Act: Thornburg v. Gingles (1986))
2. David Souter (learning to 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 Bush presidency: ADA, reaffirmation of War Powers Act)
III. Cultural Controversies
1. Gender (Year of the Woman: 1992 Senate races—Moseley-Braun, Yeakel, Boxer/Feinstein, Murray; Clinton 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)
2. Guns (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)
3. Gay/Lesbian Rights (Bowers v. Hardwick (1986); 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; Romer and significance of Kennedy; path to DOMA: provisions; alternative to constitutional amendment or political prop?)
History 432
Reagan & the Constitution
April 30, 2009
I. The Rise & Fall of Rights-Related Liberalism
1. Watergate (conspiracy unravels, Nixon resignation)
2. Rights-Related Liberalism’s Collapse (feminism, deregulation)
3. Congress and Foreign Policy (difficulties of new internationalists; backlash)
II. Reagan’s Constitutional Agenda
1. Challenging the Administrative State (Reagan and the new Republican majority; Federalist Society, Cato Institute, AEI, and changing nature of legal culture; Gorsuch and EPA; Thomas and EEOC; Donovan and Labor; Watt and Interior)
2. Foreign Policy Powers (tilt toward executive power: AWACS sale; Lebanon, Grenada, and limitations of War Powers Act, fight against Clark amendment and ultimate repeal; 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)
III. The Supreme Court
1. The Center Holds (O’Connor appointment and limits of Reagan Revolution; Rehnquist and Scalia;
- criminal procedure: victim rights, McCleskey v. Kemp (1986);
- abortion: Roe and the GOP coalition—Hyde amendment, changed Republican platform; Thornburgh cases (1985) and challenge to Roe; Webster v. Reproductive Health Services (1989) and significance of O’Connor;
- 1st amendment—Texas v. Johnson (1989), flag-burning case, Allegheny County v. PA ACLU (1989);
- civil rights: revived Southern strategy; City of Richmond v. J.A. Croson Co. (1989)—limiting minority set-asides; reinterpreting Civil Rights Act—Thornburg v. Gingles (1986) and “majority minority” districts, black-Republican alliances in South)
- gay rights: Bowers v. Hardwick (1986)
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”)
History 432
The Rise and Fall of Rights-Related Liberalism
April 28, 2009
I. Watergate (con’t)
1. 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)
2. 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. Preventing Another Watergate (Watergate elections and congressional reform agenda; lasting initiatives: FOIA (1974), Budget and Impoundment Act (1974), election of committee chairs; open meeting rules (1973); sunshine provisions for federal agencies (1976); ethics ineffectiveness: Federal Campaign Act Amendments (1974)—weakness of FEC, significance of Buckley v Valeo; independent counsel (1978); a pre-9/11 world: FBI Domestic Security Investigation Guidelines (1976 and later), Foreign Intelligence Surveillance Act (1978))
2. Feminism and the Constitution (constitutional front—abortion rights and building off earlier movements; run-up to Roe; Blackmun decision, Rehnquist dissent; 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)
3. Deregulation (political changes: emergence of Watergate/”Atari Democrats”; intellectual changes: theories of Alfred Kahn; economic changes: Jimmy Carter and politics of “stagflation”; legal changes: MCI lawsuit)
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; backlash—fates of Clark & Tunney, Panama Canal Treaty and limits of congressional power)
History 432
Watergate
April 23, 2009
From Fortas to Carswell
1. The Warren Court (rise of rights-related liberalism; increasing controversies)
2. Fortas (LBJ & the Court; role of the Senate; changing nature confirmation)
3. Southern Strategy (Haynsworth, Carswell, Rehnquist; the politics of busing)
II. Nixon and the Constitution
1. The Political Culture of Richard Nixon (conception of politics; dirty tricks legacy; merging of commander-in-chief clause and domestic authority—Kent State, Huston Plan; Pentagon Papers case; Nixon reaction; extension into politics)
2. Executive Authority and Foreign Affairs (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; War Powers Act and return to formal measurements of power?)
3. 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)
4. 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)
5. 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. The Rise and Fall of Rights-Related Liberalism
1. Preventing Another Watergate (Watergate elections and congressional reform agenda; lasting initiatives: FOIA (1974), Budget and Impoundment Act (1974), election of committee chairs; open meeting rules (1973); sunshine provisions for federal agencies (1976); ethics ineffectiveness: Federal Campaign Act Amendments (1974)—weakness of FEC, significance of Buckley v Valeo; independent counsel (1978); a pre-9/11 world: FBI Domestic Security Investigation Guidelines (1976 and later), Foreign Intelligence Surveillance Act (1978))
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; backlash)
3. Feminism and the Constitution (constitutional front—abortion rights and building off earlier movements; run-up to Roe; Blackmun decision, Rehnquist dissent; 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)
From Fortas to Carswell
April 21, 2009
I. LBJ & the Constitution
1. The Civil Rights Act (Kennedy bill, transition to LBJ)
2. Civil Rights and Politics (reapportionment; Mississippi events; LBJ and frontlash)
3. Redefining Congress’ Foreign Policy Powers (appropriations power and foreign aid; legacy of Tonkin Gulf Resolution)
4. Vietnam Tensions (Americanization of war; liberal critiques; path to Fulbright Committee hearings; creation of Symington Subcommittee)
II. The Warren Court, Legal Liberalism, & the Fortas Nomination
1. (social issues—church/state [Engel v. Vitale], privacy [Griswold v. Connecticut]; crime— significance of Watts; reaction to Miranda v. Arizona and White dissent; civil rights—poll tax amendment, collapse of biracial civil rights coalition—MLK, poverty and open housing; SNCC, CORE, and black nationalism; Loving v. Virginia; open housing bill 1968)
2. The Demise of Fortas (Wallace candidacy; “Southern strategy” and “strict constructionists”; 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)
2. Politics of Judicial Activism (legal liberalism and emergence of busing issue; Southern politics and Swann; northern targets—Boston and Garrity decision; class politics and South Boston—Louise Day Hicks; GOP politics and Detroit case—path to 1972 election; Nixon and Court—the Rehnquist nomination)
History 432
Civil Rights and the Law
April 1, 2009
I. The Constitution and the National Security State
1. Adjusting to Superpower Status (pre-WWII, B2H2 resolution, atomic energy, bipartisanship)
2. Decline of Formal Congressional Powers (warmaking and Korea, defeat of Bricker amendment)
3. Civil Liberties and National Security (HUAC, McCarran)
II. Eisenhower and Civil Rights
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)
2. Reaction to Brown (Eisenhower and origins of massive resistance; defiance: Little Rock, Virginia; Brownell and response to Birmingham Bus Boycott; 1956 bill and difficulties in Congress: 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)
III. The Path to the Civil Rights Act of 1964
1. 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, NAACP and Civil Rights Division support)
2. After Ole Miss (riots and federal military intervention; Wallace and demagoguery; political costs; Birmingham and Operation “C”; role of Bull Connor; sit-ins and boycott; use of children; public and media response)
3. The 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?)
History 432
The Constitution and National Security
March 31, 2009
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. The Constitution and the Road to War (Nye Committee and Neutrality Act; FDR and executive authority; respecting constitutional niceties—Lend-Lease, Selective Service; avoiding constitutional niceties—Destroyers-for-Bases, Iceland and naval war, unofficial embargo; battle over Ludlow amendment)
2. Wartime Adjustments (B2H2 resolution; UN and avoiding Wilson’s mistakes—Connally and Vandenberg appointments; Manhattan Project and black appropriations; new approach to commander-in-chief; postwar atomic energy: May-Johnson bill and military supremacy; McMahon Act and power of FAS; Legislative Reorganization Act)
3. Bipartisanship (National Security Act: creation DOD, CIA, NSC; importance of moderate Republicans; bipartisanship and passage of Truman Doctrine, Marshall Plan, NATO)
4. Triumph of Executive Authority (Korea and “police action”; emergence of revisionists; significance of “Great Debate” and Army-MacArthur hearings; Bricker amendment; Eisenhower, LBJ and defeat; growing importance of executive agreements)
III. Civil Liberties and the National Security State
1. World War II (Japanese-Americans and the decision to inter; Court’s response—from Hirabayashi to Koremastu—deference to military; censorship and role of military)
2. 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)
3. 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, Rosenbergs case)
4. 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 432
The New Deal and the Constitutional Order
March 26, 2009
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, Johnson 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 Path to War (Nye Committee and passage of Neutrality Act; FDR and executive authority—“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)
2. Civil Liberties and the War (Japanese-Americans and the decision to inter; Court’s response—from Hirabayashi to Koremastu—deference to military; censorship and role of military; Manhattan Project and black appropriations)
History 432
The Conservative Turn
March 24, 2009
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. The Constitution and the U.S. Emergence as a World Power
1. Imperialism and the Constitution (executive unilateralism: Platt Amendment, Panama Canal, Dominican customs receivership; Taft, Dollar Diplomacy, and non-recognition; Nicaraguan controversy; Marines, Veracruz, and limitations on congressional power; military appropriations requirement and retention of congressional power)
2. The Law and Progressive Foreign Policy (emergence of international law; Lake Mohonk Conferences; international law and The Hague; limits of vision—2nd Venezuela crisis)
3. The League Fight and the Constitution (Wilson and executive power in foreign affairs; Latin American interventions; armed ship bill and path to war; Article X and congressional warmaking power; Lodge, Borah, and Senate opposition)
4. The Warmaking Power (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)
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))
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; progressive crusades—role of Borah, Norris)
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 432
Political, Professional, and Constitutional Debates
March 10, 2009
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. The Failure of Judicial Leadership (Salmon Chase and the changing nature of the Court; wartime era and civil liberties—ex parte Milligan [1866]; Slaughterhouse cases [1873] and limiting the scope of the 14th amendment; Cruikshank [1875] and gutting the Enforcement Act; gutting the 15th amendment—U.S. v. Reese [1875]; Hall v. DeCuir (1877) and constitutional Catch-22; Civil Rights Cases [1883] and upholding states’ rights; why the transformation?)
3. Gutting Reconstruction (rise of Jim Crow laws; from the Civil Rights Cases to Plessy; political attitudes; significance of Harlan dissents anti-Chinese activism and Chinese Exclusion Act; role of California politics; Yick Wo v. Hopkins and 14th amendment (1886); women and private sphere—role of divorce; women and public sphere—limited voting, but no general suffrage; divisions among suffrage movement)
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; Judiciary Act 1875; key decisions: Santa Clara v. Southern Pacific Railroad (1886, the Court and 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.)
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History 432
Reconstruction
March 5, 2009
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)
III. The Failure of Reconstruction
1. The Failure of Political Leadership (Johnson and the weakening of the Republican coalition; the constitutional world of US Grant; 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; wartime era and civil liberties—ex parte Milligan [1866]; tensions between states’ rights and national power; tension between economic and political rights)
3. The Key Cases (Slaughterhouse cases [1873] and limiting the scope of the 14th amendment; Cruikshank [1875] and gutting the Enforcement Act; gutting the 15th amendment—U.S. v. Reese [1875]; Civil Rights Cases [1883] and upholding states’ rights; Hall v. DeCuir (1877) and constitutional Catch-22; why the transformation?)
4. 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)
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History 432
The Civil War and Constitutionalism
March 2, 2009
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. Executive Authority (Lincoln and executive authority: two models—Clay and traditional Whiggery, Adams and executive strength in spirit of Constitution; the presidency in civil conflict: Lincoln political position, Lincoln and Seward; Lincoln and Chase; Emancipation Proclamation and JQA vision)
3. Expanding Governmental Power (the Constitution in civil conflict: habeus corpus, martial law, draft law and its inequities; growth of federal government; spoils system and civil service; state executives)
4. 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 (interpreting Lincoln’s plan for Reconstruction; Wade-Davis as alternative; Civil War as de facto constitutional revolution?; Union Party and political limits of change; 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; Black Codes and Southern policies; Johnson, moderate Republicans, and radical Republicans; 13th amendment test; constitutional theories—national or federal government?; Freedmen’s Bureau and extending the limits of Washington’s power)
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History 1688
The Constitutional Crisis of the 1850s
February 26, 2009
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)
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; Seward and “higher law”)
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; $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, Buchanan, and framing the issue; Buchanan inaugural address and political deal; Taney ruling and constitutional breadth; Court attack on GOP, GOP 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)
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History 432
Slavery, Union, and the Constitution Order
February 24, 2009
I. Implementing the Constitution
1. Power in an Anti-Power Culture (Washington Community, emergence of Jackson)
2. Executive and Foreign Policy (Jeffersonian “constructionism”—LA Purchase and its successors)
3. The Marshall Legacy (the Court, political pragmatism, and nationalism)
II. The Constitutional Culture of the American Whigs
1. The Emergence of the Whigs (hostility to executive power; Webster reply to Hayne; Clay, national development, and role of legislative bargaining; Calhoun and flirtation with Whiggery; centrality of the Senate; Van Buren and alternative conception of parties; reverence for Constitution as basis of party system)
2. The Whig Agenda (Whigs and the Electoral College; Whig conception of law; Whigs and executive power; using the law for social reform—Seneca Falls and women’s voting rights, temperance movement, public education)
3. The Constitution According to John Quincy Adams (government as representative of conscience of body politic; US as exemplar of liberty; celebration of anti-party values; anti-slavery movement; fight against “gag rule”; Amistad case and growth of anti-slavery movement)
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)
History 432
The Evolution of American Constitutionalism
February 19, 2009
I. The Federalist Legacy
1. The Anti-Federalists and American Memory (historiographical and political debates)
2. The Bill of Rights (role of Madison, purposes and limitations)
3. Establishing the Constitution (constitutional dilemmas—the party system, free speech, treatymaking power)
II. 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. 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”)
3. Vagaries (the Constitution and the federal economy; debate over National Bank; internal improvements issue; role of Supreme Court; constitutional role of Indians)
III. Balance-of-Power Debates
1. 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)
2. 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)
IV. The Constitution According to Andrew Jackson
1. Andrew Jackson and American Nationalism (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”)
2. The Political Culture of the American Whigs (Whigs and the Electoral College; Whig conception of law; culture of constitution; reform sentiments—Seneca Falls and women’s voting rights, temperance movement; public education and law for social reform; anti-slavery movement)
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History 432
Implementing the Constitution
February 17, 2009
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. Legacy
1. Toward Ratification (Hancock and Massachusetts compromise; New York convention and last-minute switches; debate at Virginia; importance of historical contingency)
2. Why the Federalists Won (did they?; framing the debate; disunity among Anti-Federalists; amendment agreements)
3. 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)
4. Amendment Process (Madison and Bill of Rights: ideological or political motive?; placement issue; selection of which rights to choose; Bill of Rights as nationalist maneuver?; substance of amendments—inconsistency between 1-8, 9, and 10, rejected amendments)
III. 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; runup to Jay’s Treaty; House and Jay’s Treaty aftermath; Washington and Whiskey Rebellion; domestic powers: Hamilton and national debt, executive power, 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; Jeffersonian responseà1800 election and issues; outcome and nomination of Marshall)
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History 432
Debating the Constitution
February 10, 2009
I. Writing the Constitution
1. Intellectual Advances (purpose of Senate, nature of republican executive, questions of representation and federalism)
2. Convention Changes (increases in executive power; role of Committees on Style, Details, and Postponed Parts)
3. Legacy of Compromise (political pragmatism, lessons of past, slavery)
II. The Ratification Debate
1. Unresolved Issues (slavery and race: expectations of the Framers?; presidential and judicial power—significance of ratifying debates; role of parties; compromises to obtain ratification?)
2. 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)
3. 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?)
4. The Nature of the Contest (early Federalist victories; Massachusetts and role of Hancock—introduction of amendments; New York and Virginia showdowns)
5. 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)
History 432
The Constitution
February 5, 2009
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. Key Dates at the Convention, 1787 (June 19: acceptance of VA Plan; July 16—CT Compromise; Aug 6-Sept 10—debate before convention; Sept. 17—final vote: 39 yes, 3 no; role of Committees on Detail, Style, Postponed Parts)
III. The Constitutional Dilemmas
1. The Character of the VA Plan (federalism and nationalism; initial VA Plan and powers to 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)
2. 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)
3. 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)
4. 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)
5. Unresolved Issues
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History 432
The Revolution and Constitutional Experimentation
February 3, 2009
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; NH, MD 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?)
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History 432
Colonial Foundations of Constitutionalism
January 29, 2008
I. The Colonies in the British Constitutional System
1. Challenging British Sovereignty (the theory: Navigation Act [1660] and formal mercantilism; the realities: 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 (Declaratory Act and British politics; unitary nature of power and formalization of dominion status; Stamp Act and question of taxation: role of Parliament)
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)
4. The Constitutional Dilemmas (executive authority and legislative tyranny?; state constitutions and question of rights: where to put them?; what should rights be?; purposes of constitutions?; international effects of constitutions)
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History 432
Introduction
January 27, 2009
I . Course Requirements
1. Grading (Midterm and final examinations: 50%; Research paper (15 pages): 25%; Participation, including moot court assignment: 15%; Quizzes: 10%)
2. Other (website: https://kc-johnson.com/; contact info: kcjohnson9@gmail.com)
II. Major Themes
1. Legal History (key Supreme Court decisions, growth and transformation of federal judiciary)
2. Political Disputes over Constitutional Principles (constitutional vagueness and framing question; intersection between judicial and political questions)
3. Institutional Developments of Constitutional Structures (transformation of presidency and Congress; development of federal/state relations)
III. Chronology
1. Colonial period-1833 (Constitution as an international document: independence dispute and constitutionality of imperial rule; state constitutions’ international effects; Constitution and national security requirements; role in Latin America; beyond the Convention: importance of ratification debates, First Federal Congress; unresolved issues—First Amendment and political dissent, undeclared war, national bank and economic issues)
2. 1833-1877 (slavery and its permutations: imperialism and warmaking; federal/state power; executive/legislative power; Civil War and limitations on executive authority?; short- and long-term impact of Reconstruction debates and amendments)
3. 1877-1937 (economics and reform: transformation of legal profession and federal judiciary; Progressive Era and constitutional reforms; Progressive amendments; US emergence as great power: does the Constitution follow the flag?; warmaking and executive power; Versailles and congressional limits; isolationism debates)
4. 1937-1995 (rights-related liberalism and its permutations: the road to Brown and the Civil Rights Act; confirmation battles and politicizing Supreme Court appointments; the ERA, Roe, and expansion of rights; busing and backlash; the Constitution and the national security state: Cold War and domestic dissent; Cold War and warmaking power; Vietnam and its aftermath)
5. Modern Era (the Supreme Court after Lopez; impeachment and 2000 recount battle; debate over “Constitution in exile”; War on Terror and changing constitutional norms?; appointments controversies; 2008 and contemporary debates over constitutional issues)
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KC Johnson 