The tribes can grow it, but can they transport it?
As I indicated in class, the final will not be cumulatve. Only the material covered since the mid-term will be on the final exam. This includes the materials on the Commerce Clause—(1) the federal government's power to enforce the Commerce Clause and (2) the limitations on state government powers under the Dormant Commerce Clause rules—and the Bill of Rights that we have been studying. As I indicated in class, please be sure to read all of the readings linked to the Material for Fifth, Sixth, and Seventh Topic as well as the assigned cases. One additional reading or substitution: the excerpt from McDonald v. City of Chicago is a better summary of the various Supreme Court tests for incorporation than the Palko case. If you have not read the Palko case, skip it and read McDonald; if you have already read Palko, treat yourself and read McDonald, too!
For each topic, be familiar (1) with the Marshall-era court opinion (the rule and the raionale) that we studied, (2) with any historical significance the ruling may have had at the time, (3) the subsequent history, developments to or changes of, Marshall's rule, (4) the assigned, subsequent cases that addressed the same constitutional clause, and (5) the present state of the law with regards to the constitutional clause in question. The assigned materials, plus the McLaughlin commentary, on the "Reading Assignments" webpages will get you through the exam questions in grand fashion! There will be no surprises.
Final assignment for Friday is the Palko case, on the Seventh Topic Assignment page, and "Part Two" of the Materials for the Seventh Topic.
I hope you are all clear on the paper assignment, which I will outline again below. It is due the last Friday of the semester, December 5th.
The reading assignment for Tuesday is Part One of the Materials for Topic Seven and Gitlow v. New York, linked on the Reading Assignments for Seventh Topic page.
Directions for the paper for Friday, December 5:
Footnote references. The purpose of references is to enable me to find the exact passage you are quoting or paraphrasing or otherwise referring to. For this paper there will probably be only two sources for you to cite: the book that you reviewed and the additional sources you are using per my instructions. Here are some sample Chicago Style footnotes to demonstrate basic rules. Follow these rules closely :
1Edward S. Corwin, The Commerce Power versus States Rights (Princeton: Princeton University Press, 1936), 77. (Your first footnote should provide full details of the publication in the form indicated here. This way no bibliography is needed. Follow each comma, italics, parenthesis identically to the cite given here. It ain't that hard. The "77" indicates page 77 of the source; you need not use "pg." or "p." to indicate page number.)
2Ibid., 150. (If your next footnote is another reference to the same book, use "Ibid." to indicate this. The "150" indicates that this reference is to page 150 of the text. "Ibid." is an abbreviation of the Latin word ibidem, which means "in the same place." "Ibid." is not italicized, but it is always followed immediately with a period.)
3Ibid. (A reference to the exact same source—author, title, and page number in the text—in the very next footnote.)
4Hammer v. Dagenhart, 247 U.S. 251, 265 (1918). (New source. Case names are always italicized. "Versus" is always abbreviated "v."—not "vs." The "265" following the first page of the case, 251, indicates that you are referring to page 265 of the case.)
5Hammer, at 266. (An acceptable way of indicating reference to another page of the Hammer opinion.
6Corwin, 57. (A subsequent reference to a source cited before, but not immediately before. You cannot use "Ibid.," because this is not the same source cited in the immediately preceding footnote, so you abbreviate the earlier cited source so that the reader recognizes what you are referring to.)
7Hammer, at 270. (Another subsequent reference to an earlier cited source.)
Remember: the footnote is placed AFTER the last mark of punctuation in the sentence, and the second quotation mark—if there are quotation marks in your sentence—goes AFTER the final period of the sentence. For example: The Frankforts said, "Symbols are treated the same way."1 PLEASE PLEASE PLEASE GET THIS SEQUENCE CORRECT=the FINAL MARK OF PUNCTUATION, then the END QUOTATION MARK, and then the FOOTNOTE.
We will look at the Bill of Rights cases during the last few classes. Begin with the "Materials for Seventh Topic," Intro, and then read Marshall's short opinion, not the arguments of counsel, in Barron v. Baltimore, linked on the Readings Assignments for Seventh Topic page.
I will keep class short so that I can meet with as many of you as I can to discuss your papers. I have read the summaries that you handed it and have suggestions for what you can do—what you can reasonably do in a few days—to add to the paper.
The review-essay should be about six pages long using the book that you read and at least one other source. It will be due on Friday, December 5th. The remaining class assignments will be suitably short.
For Friday, a little catching up. The case to read for Friday is an important twentieth century case, Southern Pacific Co. v. Arizona.
Second, and of less immediate concern, please read (2) the short Part One of the "Materials for Sixth Topic," the topic we are now discussing—the Dormant Commerce Clause—which includes discussions of Brown, Willson, and Cooley.
Finally, while the discussion of the national commerce power is still fresh in your minds, well, at least relatively fresh, please read (3) Part Two of the "Materials for Fifth Topic," which I completed over the weekend. It is pretty short and includes a discussion of the strange opinion(s) in the Obamacare case and the judicial politics involved.
The one-page summary of the thesis of your book-for-review is due on Tuesday. Since that is your first priority,I will keep the reading assignment short: please read the Cooley v. Board of Wardens excerpt, linked to the assignment page. Questions to guide you through the opinion are listed in the Intro section of the Materials for Topic Six, which was assigned last week.
The one-page assignment should identify the author's or authors' thesis or main point(s) of the book and indicate three places in the book where the thesis is stated or referred to by the author(s). Use footnotes to indicate the three locations that you refer to. The three references should come from places throughout the book to provide some evidence that you have, in fact, read the book by Tuesday. I discussed this at length during Friday's class. Keep it to one page; a title page stapled to your paper would be very helpful. It's due in class Tuesday: if you cannot be in class, the paper must be emailed to me by 2:00pm Tuesday, and you must provide me with a hard copy as soon as possible thereafter.
The following are the assignments for Friday and for next Tuesday. The assignment for Tuesday is, perhaps, more important than the on for Friday, so be sure to read it.
For Friday, please read the Intro to the Sixth Topic, the Dormant Commerce Clause (as usual following the "Materials for Sixth Topic") and the opinion in Willson v. Black-Bird Creek Marsh, Co., linked on the Reading Assignments for Sixth Topic page. On the Willson link, the arguments of counsel precede the opinion and the opinion in another related case, Atkinson v. Philadelphia and Trenton Railroad, follows the Willson opinion. You need only read Marshall's opinion in the Willson case, not the preceding arguments or the Atkinson opinion.
For next Tuesday, November 18th, I want a typed, one-page statement of the thesis or argument of the book that you are reviewing. The statement should cite at least three pages from throughout the book on which the author's thesis is stated. This gives me some evidence that you have read the book through to the end. To press the importance of giving this and the review youir immediate attention, the assignment is worth twenty (20) percent of the value of the final paper that you hand in. You all tell me you have your books and promise to read them this week. One of my favorite presidents once said, "Trust, but verify." I need some assurance that you are in fact working on the project.
By now, all you of should/must have a copy of the book that you chose to review. Your main assignment for this week is to read it! I will lighten up the class assignments for the next couple of weeks to let you get through the books. Your main goal in reading the book is to identify the author's thesis or main point or argument and how the author goes about supporting the thesis or main point or argument. This is always one of the purposes of a review. So get hoppin'!
The reading assignment for Tuesday is to read either the Lopez case excerpts or the National Federation of Business case excerpts, both available via the Reading Assignments for Fifth Topic page. We will reallocate the cases on alphabetical grounds: students with last names beginning with "A" to "G" will read the Lopez case; students whose last names begin with letters "H" to "T" will read National Federation of Business. The usual questions must be considered:
Please read (1) Part One of the "Materials for the Fifth Topic", and then read (2) the excerpt from Wickard v. Filburn, linked on the Fifth Topic assignments page. The opinion in Wickard contains a summary of the development of federal Commerce Clause power from Gibbons (1824) to the 1940s. The last few paragraphs of the opinion focus on the actual legal arguments in the case.
This is not a formal written assignment; you do not have to hand anything in. Reading Part One before the case will help to put the case in historical and legal context.
Since we were talking about the Voting Rights Act of 1965 in the Katzenbach case, you may be interested in this story about another Voting Rights case.
For Tuesday: (Here is the lost—now updated—assignment, which was still safely kept on my Filezilla site waiting to be posted.) We will, for the present, skip the fourth topic and go the the fifth: The Commerce Clause and Gibbons v. Ogden. For Tuesday, please read the excerpt from McLaughlin (#3 on the "Reading Assignments for the Fifth Topic"), the story by George Dangerfield on the "Steamboat Case" in the Garraty text, and the excerpt from the Gibbons v. Ogden opinion.
The results of your book selections is here. I think all of you got your first choices. Now you must bring a copy of the book to class with you ON NOVEMBER 4TH!!
WRITTEN ASSIGNMENT DUE. The assignment for Tuesday is (1) finish the City of Boerne v. Flores case and (2) read either Mireles v. Waco or McGrain v. Daugherty. These cases are also available under "Related Cases and Recommended Reading" on the Assignments for Third Topic page.
In City of Boerne, as was discussed in class, the Court ruled on the constitutionality of a federal statute (The Religious Freedom Restoration Act). Like in the Katzenbach case, where the Court ruled on the constitutionality of the federal Voting Rights Act, the Court had to decide whether the statute exceeded the constitutional powers of Congress under an amendment enforcement clause. Answer the following question (in writing and handed in in class): What rule regarding enforcement clauses did the Court use in City of Boerne and how did it differ (if it differed) from the rule the Court applied in Katzenbach?
For the Mireles and McGrain cases, answer the following questions (in writing and handed in in class):
If you originally read the Chisholm case, read Mireles; if you originally read the Calder case, read McGrain.
Three case excerpts for next class: South Carolina v. Katzenbach, City of Boerne v. Flores, National Federation of Independent Business v. Sibelius. All are linked on the "Reading Assignments for Third Topic." Look to see if the McCulloch language—"Let the end be legitimate . . . ."—is in each opinion. How is the Court relying on the implied powers doctrine in the cases? Or is it? Also, bring your list of three books for the review essay with you. The book list is above.
We will take a look at the Implied Powers Doctrine this week and next. Please turn to Topic Three on the "Constitutional History: John Marshall and American Nationalism (Fall 2014)" assignment page and read the following: (1) the story in the Garraty book entitled "The Bank Cases," cited on the "Reading Assignments for Third Topic" link, and (2) the short "Intro," which is linked following "Materials for Third Topic." Not a lot of reading. I have your last assignments to return to you but not your exams.
The written assignment is due Tuesday. The mid-term exam is on Friday
The Mid-Term. You will have eighty (80) minutes to take the mid-term. Show up a few minutes early if you can, put your belongings at the front of the room. Have a couple of blue or black pens—no pencils—and you should have no trouble completing the exam on time. We will start right at 2:00pm.
There will be several short essay questions based on all of the readings so far assigned.
As I prepare the questions, I am going back over the assigned readings, including the cases, Garraty, and particularly the excerpts from Andrew McLaughlin's text. My written comments in the "Materials" sections of the Topics are intended to help you understand the material. Use them, of course, but as I said in class, I am looking for evidence that you have read and made an effort to understand the assigned material from Madison, McLaughlin, Garraty, and, of course, the cases. You can do this by including details from the readings in your essays. Remember: a good essay answer addresses the question directly and provides accurate, detailed information from the readings.
We went over the two cases, Martin and Cohens, and I tried to touch on terms and legal concepts that might be obstacles to your understanding of the opinions. The written assignment should answer each of the questions that I listed below. In particular, focus on the Court's rationale for its opinion on the constitutional issue. Both opinions address more than one argument made by counsel for the losing side. You should be sure to indicate a couple of those. Provide some supporting documentation for your summary in the form of highlighted copies of the opinion, exactly like most of you did the last time. I want you to try to understand the reasoning of the Court in justifying its decision. Your submissions should be no more than one and one-half pages long.
We will discuss the mid-term, also. At this point, I suggest that you take weekend time to reread, or read for the first time, the assigned material on the "Constitutional History: John Marshall and American Nationalism (Fall 2014)" link.
Here's a story on some interesting cases to be decided during the Supreme Court's October 2014 term. Take a look.
For Friday, no written assignment is due! I would like you to read either Martin v. Hunter's Lessee or Cohens v. Virginia. Read Martin if you reported on Calder v. Bull last week; read Cohens if you reported on Chisholm. As usual for either case, address the following questions:
The excerpts are posted and good to go. Download the case you are reading from the "Related Cases and Recommended Readings" section of the Second Assignment page.
First, read the material on the "Part One" link of the "Materials for the Second Topic." This summarizes our reading of Marbury and introduces the cases for Tuesday—Rescue Army and Cooper. Then, on the "Reading Assignments for the Second Topic" link, read the excerpts from the Rescue Armyand the Cooper cases. Other cases on the "Related Cases and Recommended Readings" list may help you to understand what is going on in the two assigned cases.
For Friday, go to the link below, click on the "Reading Assignments for Second Topic" link, and please finish the "First Assignment" for Topic Two: the opinion in Marbury v. Madison, linked on the page. Focus on the material printed in red, but please review the rest of the opinion if you have time.
We begin a section on judicial review and the rise of the national judiciary. On the "Constitutional History: John Marshall and American Nationalism (Fall 2014)" link below, please read (1) the "Intro" section of the "Materials for the Second Topic," (2) chapter 1, "The Case of the Missing Commissions" in the Garraty text, and (3) the excerpt from McLaughlin, chapter XXIII. We will read the excerpt from Marbury v. Madison for Friday's class.
The first topic (the early court) included a lot of introductory materials. The assignments should all be a bit shorter than that first one.
I might suggest to those of you reading Chisholm (Mohammed, Bryan, Erick, James, Peter, Ogai, John, Apasrin, and Doug) that you start with the (shorter) opinions of Jay, Cushing, and Blair, and then read as much as you need of the longer opinions of Wilson and Iredell. You do not have to plow through all the pages of the opinions in order to get the information you need.
Those of you reading Calder (Alyssa, Katherine, Komal, Logan, Colin, Fatima, Amy, Ashley, Edward, and Garrett) should be able to get through all of the opinions.
Remember: you have an assignment to hand in on Friday!
For Tuesday, please read the materials under the section "Second Assignment" listed in "Reading Assignments for First Topic" on the link entitled "Constitutional History: John Marshall and American Nationalism," located immediately below this one on the main website. The assignment includes the Hylton case and another excerpt from McLaughlin, as well as a couple of discussion questions.
For Friday, I will post "Part Two" of the "Materials for the First Topic" and ask you to read one of the related cases at the bottom of the "Reading Assignments for the First Topic" link."
For Friday: please read (1) the rest of the assigned materials for the First Assignment listed in "Reading Assignments for First Topic" on the link entitled "Constitutional History: John Marshall and American Nationalism." This includes the Hayburn case, the "Correspondence of the Justices," and the excerpt from Andrew McLaughlin's book. Also read (2) Part One of the "Materials for the First Topic." You read the Intro already, which included all of the information on court opinions that we discussed on Tuesday. I suggest that you read the material in part (1) first, and then the material in part (2), because the latter is a commentary on the former.
A fairly long assignment for Tuesday, so do not put it off until the last minute. On the link entitled "Constitutional History: John Marshall and American Nationalism," immediately below this one on the main webpage, please read (1) the "Intro" materials for the First Topic and, on the link entitled "Reading Assignments for the First Topic," which is immediately below the Intro link, (2) the law review article on Yale Todd v. United States. For Friday, the assignment will be the remainder of the materials under the First Assignment and Part One of the "Materials."
I want you to access all of the assigned materials from the "Constitutional History: John Marshall . . ." link and not from this link. I know this will be cumbersome at first, but we'll get the hang of it by the time we get to the second topic. All of the links are working, so there should be no problem accessing the material. If my instructions are not clear, let me know and I will try to clarify, as long as you do not email me Monday evening!
For Friday, we will follow the development of the constitution through the summer of 1787. Using the same websites that you used for Tuesday's assignment (links below), read the material from the following dates, as recorded by James Madison:
All of you who suffer from "Correct-Spelling-Deficiency Syndrome," or CSDS for short, can take heart in Madison's spelling of the last names of his fellow delegates. He was terrible!
You may also be interested in Alexander Hamilton's speech or plan, given on June 18th.
For Tuesday, please read the material from the Constitutional Convention for the dates May 30 to June 2 in James Madison's Notes of Debates in the Federal convention (Avalon Project of Yale Law School). It is available also on the Library of Congress website along with the official journal of the convention and notes of other delegates. The Liberty Library also has Madison's notes and the notes of other delegates, as well.
The Virginia plan was proposed on Tuesday, May 29. The following week's debates will give you a taste of the discussion that took place in the early days of the convention.
The assignment for Friday, August 29th is The Articles of Confederation and chapter 3, "Defects of the Confederation," of Max Farrand's The Framing of the Constitution of the United States, which is available on several websites. Please see the syllabus. Prepare a list of the defects that Professor Farrand describes in chapter 3.
Attendance: As the syllabus indicates and as I have explained in class, I am very liberal about excusing absences and lateness to class, but I do not accept every reason for missing class as the basis for an excused absence. I will excuse you if you are sick and have been to or are going to visit a doctor or nurse (a "health professional") for treatment. I will also excuse absences because you must keep an appointment or your employer requires you to be somewhere else or you must go home on family business. I may ask for written documentation of these reasons, but generally I do not ask.
I have received a number of emails and other messages in the past from students informing me that they will not be in class on a particular day for one reason or another. Merely informing me ahead of time does not mean I excuse the absence, though I appreciate your courtesy. I will not excuse your absence because you are simply not feeling well or because you choose to do something worthwhile other than come to class even if you inform me ahead of time. If you are coughing and sneezing and coming down with a cold or the flu, and you don't want to spread your virus to your classmates, staying home is probably the right thing to do, but it is not an excused absence. For that I need documentation. You all get three unexcused absences to use as you see fit, and it is your decision to use them to stay home when you don't feel well or want to attend some other event or need to prepare for another class instead of going to my class. Use them for good reasons: that's what they are for.
Make-up Exams: The same basic rules about excused absences apply to taking mid-terms (papers are always due on the due date--no exceptions). You may be excused from taking a mid-term if you are certifiably sick or your job prevents you from attending class or you have a serious family or personal emergency on the day of the test. If one of these applies and I am informed in a reasonable time before the exam, you may take the exam on the same day as the final exam. If none of these reasons apply, you may not take the exam at another time, and you will get a zero for the exam. My policy of giving makeup exams on the same day as the final, which is provided in the syllabus, does NOT mean that you may choose to take the mid-term exam on that day rather than on the regularly scheduled day: it is not an alternative test date. To be eligible for a makeup, you must qualify for an excused absence, and this you should do a reasonable time before the day of the mid-term, if that is at all possible. Remember also, if you are late for the exam because of events outside of your control, let me know immediately or as soon as possible and I will let you take the exam later that same day if possible.
Excessive excused absences may also be a problem, and we should discuss such situations well before the last month of the semester. If your job or an illness keeps you away from class for more than a third of the semester, it will definitely affect the class participation component of your grade and may be a good reason to drop the course and take it another time. All of us find ourselves in these situations from time to time and have to deal with them appropriately.
When in doubt about any of these policies, please come and talk to me: don't make me seek you out. You should also review the University's policies on absenteeism in the University Catalog.
The list of cases upon which the exam questions will be based is as follows: Marbury v. Madison, McCulloch v. Maryland, Gibbons v. Ogden, Charles River Bridge v. Warren Bridge, Dartmounth College v. Woodward, Dred Scott v. Sanford, The Civil Rights Cases, The Slaughter-House Cases. Be able to place each within its historical setting, identify its legal issue and resolution, and its historical significance: in other words, be able to tell the story of the case in the manner of the chapters in Garraty. Out of the eight named cases, I will ask four questions, each based upon one the cases, and ask you to answer two of them. See you at 3:30pm (not 3:00pm). Bring a couple of blue and black pens and your ID number.
Katrin and Tom will make presentations on selected cases, but since they still (as of Saturday morning) have not told me which cases they will present, I will assign the following readings for class: Urofsky, chapter 21 and the Civil Rights and the Slaughterhouse cases, both of which are available on the Constitutional Law Case List.
Remember, the purpose of the presentations is to tell the story of the case in a way similar to the stories in the Garraty text. Use such other sources as you find necessary. I have added a whole bunch of new constitutional history cases to the list on Constitutional Law Case List to increase your options.
We will focus on a few civil rights and Fourteenth Amendment cases in the last two classes. As I mentioned in class, rather than follow the Urofsky text straight through to the end, we will read only what is relevant to the cases on which we focus. So, for this class please read pages 439-449 of chapter 20 and chapter 22 ("The Court and Civil Rights"). Carmen will tell us about Barron v. Baltimore, an 1833 case that is important to understand when we look at nineteenth century civil rights cases from a twenty-first century perspective. Katrin and Tom still have to choose cases; you can pick one to report on at the December 1st class (email me) or pick one for the December 8th class. All of the presentations so far have been very appropriate to this course.
I have added a bunch of cases that should take us through the end of the semester to the Constitutional Law Case List.
For the review essay, let me quote from the syllabus: "The review essay will be an 8 to 12 page paper that reviews an approved book from a list of books to be made available by the instructor and also provides additional research material to explain how a particular Supreme Court case (1) reflected a critical response to existing historical, political, and legal factors and (2) how the decision affected subsequent historical, political, economic, and legal conditions in the country." If you are having a difficult time developing a research question from the book you have read, focus your research on explaining the two parts of the quoted statement.
As I stated in class, the first two to two and one-half pages of the review essay should explain the author's thesis, explain how he supports his argument, and provide evidence that you have read the entire book. The rest of the essay should either pursue the research question that you have identified or follow the above-quoted provision from the syllabus. In addition to the book that you reviewed, you should significantly use (that means not just mention or make one reference to it) at least four other scholarly sources. ("Scholarly"=having footnotes/references and a bibliography.) The grade is based on the 40%/30%/30% formula described in the last section (Part IV) of the Memo on General Requirements for Research and other Papers in Politics.
Under the "Useful Links" section of my web page, read the memos on General Requirements for Research and other Papers in Politics (Part IV) and on Article and Book Reviews, and follow the relevant directions from each memo. If you review the five guidelines for book reviews in the latter memo, your review-essay is basically a long critique of the book using external sources.
See you all next Wednesday!
Please read chapter 18 in Urofsky and chapter 6, The Dred Scott Case," in Garraty. Lindsey will also present a paper on Prigg v. Pennsylvania, which is discussed in chapter 17 of Urofsky.
I have added a number of cases that are discussed in the Urofsky text to the Constitutional History section of the Constitutional Law Case List.
The Garraty chapters and the court opinions in the Dartmouth College v. Woodward and Charles River Bridge cases are the assigned material. No student presentations this class. At least one a class for the rest of the semester.
You should have received and have even begun reading the book you chose to review. Your reading should produce two things: an understanding of the author's thesis—the main point that the author wanted to get across in the book—and a question that you want to pursue based upon the book. The question is the basis for your additional research in this 8 to 12 page paper. You should identify both by the class of the 17th. Paper is due December 1st.
Guidelines on the general requirements of research papers can be found on the link entitled "Memo: General Requirements for Research and other Papers in Politics," which is the first link under the "Useful Links" section of my web page.
No new assignment in Urofsky (be sure to catch up on all of the previously assigned chapters); in Garraty, read the chapter on the Steamboat case, and read Gibbons v. Ogden, which can be found on the Constitutional Law Case List page. Heather will tell us the inside story of the Cohens case (Cohens v. Virginia, 19 U.S. 264, 5 L.Ed. 257 (1821).
The two books that I suggested to you for consulting about the cases are Charles Warren, The Supreme Court in United States History (Boston: Little, Brown, 1947), and Andrew C. McLaughlin, A Constitutional History of the United States (New York: Apple-Century-Crofts, 1935; vol. 1 reprint by Simon Publications, 2001). Check the WRLC libraries for them.
Be sure to order your books for the review essay and start reading!
As announced, the class will focus on the case of McCulloch v. Maryland. The assignment for next time is (1) Garraty, chapter 3, (2) Urofsky, chapter 11, and (3) the opinion in McCulloch v. Maryland. The opinion can be found under the subheading "Constitutional History Cases" at the very end of the Constitutional Law Case List link on my main web page. You need not read the whole case; read just the pages indicated on the case list link (as explained in class).
You should already have read Urofsky, chapters 8 and 10 for the October 20th class. You should further read chapter 7 of Urofsky. One question on the final exam will focus on the Urofsky text historical narrative.
Finally, as you read Urofsky chapter 11 (or chapter 10), if you come across a particular case that peaks your interest, pick it and be prepared to make a Garraty-like report to the class during one of the remaining class periods. I will select someone (a volunteer?) next class to make such a report at the following November 3d class). The semester is only half-over; let's not lose momentum now.
Please read the following: Urofsky, chapters 8 & 10; Garraty, chapter 1; and Marbury v. Madison, 5 U.S. 137, 153-180 (Marshall's opinion). Outline the Marbury opinion. (Chapter 7 of Urofsky is a good overview of the years from ratification to Marbury. You should also read this over the next two weeks.)
The Marbury opinion is organized on the basis of questions that Marshall poses and answers in the course of his argument. What are the questions that he poses? What are his answers to each question? What rationale does he give for each answer? How does each question lead to the next? The constitutional issue is contained in his rationale for the answer, or answers, to his last question, which he actually breaks into two. What is his rationale for maintaining that the American courts have the power to declare federal statutes unconstitutional? Compare this rationale to Hamilton's argument in Federalist #78, which we read a couple of weeks ago. Are the arguments similar? Different.
Because this is the first opinion that we will read and analyze, we will focus primarily on the opinion during class. In the following weeks, I will ask one of you each class to make a presentation on the assigned readings. I will be glad to take volunteers for these assignments. If no one volunteers for October 27th, I will proceed alphabetically. Volunteering lets you have some control over your schedule.
As I mentioned in class, you must select one of the following books for your review-essay by October 27th. The review-essay is due December 1st.
The second part of the class will be an introduction to the remainder of the course. Skipping out on the second part will not be excused.
All right, folks, this is what you must do.
1. Federalist and Anti-Federalist writings. Please read Federalist Papers 10, 39, 51, and 78. Nos. 10, 39, and 51 are classics by Madison that everyone ought to be familiar with. No. 78 is one of Hamilton's essays on the judiciary. The Federalist Papers are available via a link on my main website under "Western Political Concepts I & II Readings." It works; I just tried it. In opposition to the constitution, please read George Mason's Objections (in the Solberg text), Elbridge Gerry's letter to the Massachusetts General Court of October 18, 1787, and Brutus's Letters XI and XII, dated January 31 and February 7, 1788. These are available a couple of different places. Let me turn first to the second part of the assignment, and then I will explain where you can find these documents.
2. State ratification debates. Each of you should select one state and either continue examining the institution that you reported on in class or focus on a new subject that received a lot of attention in the state convention you selected. For example, several states had extensive discussions about a bill of rights for the new constitution.
The ratification debates are found in Elliot's Debates, which are linked onto the Library of Contress website, "Thomas." There is a link to "Thomas" on my main website under "Useful Links" and a link directly to Elliot's Debates on the POL/HI 333 syllabus that is on my website. Use the link on the syllabus. When you get to the Elliot's Debates page, select a state by clicking on the "Contents" link of each of the five volumes listed on the left-hand side of the Elliot's Debates website. Select one of the following states: Mass, NY, PA, VA, NC, or SC (if you pick South Carolina, you've got to look at Connecticut, Hew Hampshire, and Maryland, too!). Skim through the debates and try to find discussion of your institution or chosen issue. You do not have to read hundreds of pages! The three of you who are looking at the judiciary should choose separate states.
If you want to access Elliot's Debates via the "Thomas" website, you must click on the link that says "Century of Lawmaking" under the "Related Resources at the Library" on the left-hand side of the Thomas webpage, and then click on Elliot's Debates. Volume One of Elliot's Debates also includes Elbridge Gerry's letter and George Mason's Objections.
Another excellent source for Anti-Federalist writings is "The Founders' Constitution." On the main webpage, click on "Indexes," then on "Index of Authors and Documents." The Brutus letters are on the list of links, as are the Federalist Papers, listed by author. The TeachingAmericanHistory.org website is also good, but does not have half of the Brutus letter.
Come to class with something in writing to be read but not handed it.
Please read Madison's notes on the final stage of the convention (August 6th to the end, September 15th, pages 251 to 335). Carmen, Tom, and Lindsey, select one of the institutions of government--the executive, the judiciary, the Senate, the House of Representatives--and discuss its development over the final month of convention deliberations. Consult with a classmate if you have questions about what to include in your report. Three pages, double-spaced, to be read in class and then handed in, Solberg's edition of the notes for the third stage is divided topically. If you choose to follow one of those topics--navigation acts, slavery, Western lands, and so on--be sure to try to tie it to the earlier proceedings of the convention.
I will post a list of books here for the book review later this weekend. Thanks for your patience.
Please read Madison's notes from the second stage of the Philadelphia convention—June21st to July 26th—and select one of the following institutions to focus on during that period: the Executive, the Judiciary, the Senate, the House, the Council of Revision. Scott will report on his findings about the Executive, Katrin on the Judiciary, and Heather on one of the branches of Congress. The rest will do the same the following week.
The reports should be typed, double-spaced, no more than three pages, and read in class. Explain how the institution you focused on developed during the time period in question.
For Wednesday, please read Solberg, pages 67 to 140, which covers the initial discussion of Randolph's Virginia Plan and the presentation of Patterson's New Jersey Plan. Chapter 6 in Urofsky discusses the Philadelphia Convention, so please read it either this week or sometime in the next two weeks.
As you read the debates, try to determine if the following interests or perspectives color the delegates' comments:
Above all, try to lose yourself in the convention room and imagine what impression the speaker must have made, what the reactions of the listeners were. You will probably do this naturally, and your impressions will change as you become more familiar with the speakers, but try to get a sense of the atmosphere in that hot, hot assembly room in Philadelphia.
The ungraded seminar papers are ready and in the wall rack at my office: these are NOT the research papers. The final exam question will tie the material we read in Madison's notes and Elliott's debates with the cases and issues we read about later in the semester. Given what we read in Madison about the deliberations of the convention and then the cases we studied later on (or which are in the Randall book), two general areas suggest themselves: one is the Framers' understanding, if any, of the extent and the source--state or national government--of regulation of the economy. The desire to give the national government more power over economic regulation was one of the main goals almost all of the Framers had in common, but the Contract Clause, the Commerce Clause, and the evolution of the Supreme Court's approach to business regulation over the late 19th and early 20th century should be compared to what the Framers said at Philadelphia.
A second subject is the development of the national war and emergency power in the 20th century. Was this contemplated by the Framers at Philadelphia? Were they essentially pragmatists who would have accepted "necessary" changes in the relative powers of the national government as contrasted to the state governments and the executive branch as contrasted to the legislative branch, or did the Framers have a more definite idea of what the national government's power in war and international relations should be?
You will have to pick one of these two subjects and compare and contrast the relevant historical and case material that we have read in Randall with any relevant debates you came across in Madison's Notes. The Final is Wednesday evening at 6:30pm, not 6:00pm! Should be over about 8:00pm.
Please read the rest of the material in chapter 9 of Randall. The only relevant Garraty story is the one on Curtiss-Wright; read it if you wish, but I will not formally assign it.
Please read pages 353 to 372 of Randall. A number of cases that are excerpted at the end of the chapter are mentioned and discussed in those pages: please read those cases. Next class, we will complete chapter 9 and the rest of the excerpted cases at the end of that chapter. I need at least two volunteers to give papers on Tuesday, or else you will have to give a paper at the last class, when the research papers are also due.
When skimming Jordana's book, Labbe and Lurie's The Slaughterhouse Cases, I came across a statement in their preface that seems particularly apt for your research papers:
"A study of one of the Supreme Court's great constitutional cases involves more than an analysis of the decision and the several opinions of the justices. A great deal needs to be said about the political, economic, and social background out of which the case arose. . . . Much also needs to be said about the identity of the parties to the case and about the lawyers who converted the parties' interests into legal arguments."
You might also "discuss the aftermath of the . . . decision and briefly trace the future course of the legal doctrines involved in" the case. Obviously you cannot do all of this in your brief papers, but if you translate "a great deal" and "much" and "discuss the aftermath" into "something" and "briefly describe," and allowing for each of you to emphasize one of these aspects in your paper more than the other aspects, you have a pretty good description of what your paper should look like.
Please read chapter 8 in Randall and chapters 14 and 16 (don't let the Roman numerals throw you) in Garraty. One of you (???) was going to give a paper: remind me who it was.
We will cover chapters 6, 7, and 11 of Randall, and the previously assigned chapters of Garraty plus chapter 7, "The Unscrupulous Warehouseman." The two sources I mentioned in class are Charles Warren's Supreme Court in United States History and Andrew C. McLaughlin's Constitutional History of the United States.he Warren text is on reserve; the McLaughlin text is not in our library but has been newly reissued: check Amazon.com.
Skim through the rest of the Randall book and select a case that will be the basis for your research paper. Come to class prepared to explain the nature of the case, its issue, holding, and rule, its tie to its historical setting, and what you want to find out about the case, its historical causes or consequences, or its relation to other cases, theories, or political events. In other words, what question do you want to research that is related to the case? Treat this as a seminar paper: come prepared with a two or three page paper to read. We will discuss each paper and try to leave you with a clearer idea of what you should focus on in your research.
The book reviews are due. No need for ID numbers since I know the books that you are working on. The reading assignment is chapters 6 and 11 of Randall, and chapters 2, 4, & 5 of Garraty. Read the cases that the Garraty stories are about: Dartmouth College, Gibbons v. Ogden, Charles River Bridge. In chapter 11, read the Penn Central Transportation case. No seminar papers are assigned, but come prepared to discuss your likely area of interest for the research paper.
BOOK REVIEWS. As I explained in class, the book reviews should (1) be five to seven pages long plus a title page, (2) identify the author's thesis and method of supporting the thesis, (3) contain specific evidence to demonstrate to me that you have read the entire book, and (4) consist of at least one-half commentary and at most one-half summary or description. Your comments should be aimed at identifying one of the author's fundamental themes and relating it, if possible, to the themes and material that we have been studying in this course. Since most of the books you have chosen focus on a particular Supreme Court case and the historical context in which the case occurred, you may focus on the case or on the historical events preceding or following the case. To do so, you may use materials from other sources, legal or historical, to support your comments, but the paper is a book review, not a research paper, so you need not use a lot of other sources, if you use any at all. Your commentary should have a point--a thesis--about the book that you support with persuasive evidence and argument. Use footnotes to identify the sources of the passages that you quote or paraphrase.
Please read the historical commentary in chapter 4 of Randall's American Constitutional Development, chapters one and three in Garraty, Quarrels that have Shaped the Constitution," and four of the cases in Randall's chapter 4, including Marbury, McCulloch, Barron and one of your own choosing.
Again, let me tell you all how pleased I am with your preparation and with the class discussion on Elliot's Debates. The two seminar papers were certainly good, but the presentations by the rest of you were terrific as well. Please keep it up. It is what I hoped this class would be like.
The book review is due Wednesday, October 22. I will post the requirements and also discuss it in greater detail in class.
Mid-term Question. Based on your readings of Madison's Notes AND of the proceedings of one of the state ratifying conventions, address the following question:
Which issue--the large state v. small state issue or the federal/confederal v. national form of government issue--was more fundamental at the Philadelphia Convention? Was this also an issue in the state ratifying convention that you studied?
You should consider how the two issues were related, if at all and how the fundamental differences on the issues were presented in the debates (you might consider, for example, whether the federal-national debate was at the root of the discussion of another issue, such as the debate over the executive or over the representation of the Senate debate or some other seemingly unrelated issue).
You need not use footnotes (although footnotes are OK--just make them to the dates of the debates you are referring to), but you should identify carefully the speaker/writer and date of any remarks that you use in your paper. I am hoping that you use this paper to uncover some of the deeper currents that ran through the debates.
The mid-term should be five typewritten, double-spaced pages. A title page with your ID number is also necessary. No formal footnote apparatus is necessary, but You should identify with some accuracy and precision the sources you use (the particular day on which someone spoke in the Philadelphia convention or one of the state ratifying conventions or, if you wish, the title of a Federalist or Anti-Federalist paper.
I will post the dates of debates on the executive branch on Saturday morning. In the meantime, read the article on "Cases of a Judiciary Nature."
By my accounting, the Philadelphia delegates discussed aspects of the proposed Executive on the following dates: July 17, 18, 19, 20, 21, 24, 25, 26; August 15, 24, 25, 27; September 4, 5, 6, 7, 8, 15. Unlike the discussions of the legislature last week, many of these Executive discussions did not take the whole day that I listed. As with last week, pick ten dates--don't look for the ten shortest! I suggest in particular that you look at some or all of the July dates when the fundamental issues were discussed, and then follow it up with a couple of later dates to see how the final proposal was arrived at. Michelle and Amanda are scheduled for the papers. You are all on your own regarding the food.
I had wanted to discuss with each of you the book that you selected for your book review. Firm selection of a book is due on the 17th of September. Email me with your present choice and we can discuss it.
I want to limit the reading to less than the last time, but I am having a difficult time cutting out material from the June 20th (p. 154) to the crucial vote in July 16th (p. 302). Therefore, as a bad compromise with myself, I will assign this: read the daily reports for any ten (10) days of the convention between June 20th and July 16th. Be sure to select July 16th itself and at least a couple of the immediately preceding days. Bring a list of the days you have read to class (trust but verify). This period of time leads up to the critical July 16th passage of the Connecticut Compromise.
Please read Madison's notes from the first entry (Monday, May 14th, 1787) up to and including Tuesday, June 19th, 1787. Note in particular the different plans placed before the convention for its consideration. You should come to class with a book preliminarily identified for your book review.
As you read the Madison report, you may want to identify one or two delegates, to follow throughout the convention. The National Archives Constitution site is a good source of such information, as is the Ashbrook Center's Teaching American History site.
Another thing to look for in the report on the convention's first month of deliberation are signs of later disputes, such as the large state-small state tension or the slavery issue, and later issues, such as the Framers' understanding of the extent of the Executive and Judicial powers. Which delegates were pro-democracy? Which were anti-democratic? What form did their pro- or anti-democratic sentiment take? What issues or proposals/resolutions/votes brought up their views on democracy? Note also the foundational decisions on parliamentary rules. Finally, of course, note the proceedings that immediately preceded Paterson's request for a recess: did you see it coming? Why did the convention reject the New Jersey Plan?
Another valuable source for this class is Benjamin Perley Poore'sThe(Washington, D.C.: GPO, 1877), available here.