381C. CONSTITUTIONAL
LAW II
(#28804)
Spring 2023
Professor William E.
Forbath
AMERICAN CONSTITUTIONAL HISTORY, 1764-2022
Welcome to Constitutional History! These uncertain, tumultuous times are
ones when studying our constitutional past is especially revealing, thoughtprovoking, important – and even fun.
Professor William E Forbath
wforbath@law.utexas.edu
Office: JON 6.216
Office hours: Tuesday, 3:45 pm – 5 pm, or by appointment
If Tuesday 3:45 pm – 5 pm does not work for you, email me, and we will find a time to meet.
Faculty assistant: Ty Morgan (tyshaun.morgan@law.utexas.edu)
Class Meetings
Monday/Tuesday 2:15 - 3:30 pm
Mondays in TNH 2.139 and Tuesdays in TNH 3.142
Prerequisite
You must have taken Constitutional Law I.
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THE SUBJECT OF CONSTITUTIONAL HISTORY & OUR GOALS FOR THE COURSE
Constitutions are about power, what it is to be used for, by whom, and according to what
understandings and justifications. Constitutional conflicts concern the reach and limits of
government power: state and local power versus federal power; legislative versus judicial power;
public governmental power versus private liberty. Constitutional conflicts, at the same time,
concern questions of interpretive authority. Who has the right to say what the Constitution means
and demands? The courts? The President? The federal or state lawmakers? The people
themselves?
Constitutions, also, are about political community. Who belongs, in the U.S. Constitution's
words, to "We, the People"? Who counts as a full, rights-bearing citizen? And what are his or her
rights?
These are the main issues of constitutional history; small wonder that its currents and conflicts
have involved more than the courts. This course will weave together U.S. constitutional history
in the courts with the history of constitutional conflicts in American politics, culture and society.
One of our goals will be to equip you to think deeply and argue clearly about today’s
constitutional conflicts, in the light of the ways that such conflicts have unfolded in the past.
At the same time, we will explore the uses of history in constitutional interpretation. What kind
of authority should past generations’ constitutional understandings and commitments enjoy in
today’s constitutional contests? What does it mean to be “faithful” to the Constitution as a
centuries-old text and a centuries-long experiment in self-government? In what ways are we
bound by the words and deeds of the past? In what ways are we free to construct new
constitutional meanings and principles?
These are questions which arise in constitutional litigation. Even more often, they arise in
constitutional discussions, arguments, and debates outside the courts – in electoral, legislative
and administrative arenas and in public discussion and debate.
Never have these questions been more pressing than today, when, in one way or another, “we
are all originalists,” as Justice Kagan famously put it. So, now more than ever, these are
questions which fellow citizens will expect you as a well-educated lawyer to help them
understand. Another goal of this course will be to equip you to address these questions with a
deep understanding of how past generations addressed them – and to acquaint you with the
strengths and limitations of standard forms of “originalism.” You will learn to make
sophisticated arguments in an “originalist” framework, and also be able to address the
shortcomings of that framework.
We will focus chiefly on the first century of American constitutional experience. We will
examine the founding of the republic and the framing and Antebellum history of the Constitution
as a great experiment in self-government and a great set of struggles over race-based human
bondage. A key goal here will be to equip you to discuss how the founding generation and the
ones that followed it understood the meaning of key constitutional provisions--and how they
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understood the roles of ordinary citizens, lawmakers, and the Executive, as well as courts, in
resolving disputes about constitutional meaning.
We will also study the same period as a great constitutional experiment in federalism - in
creating and managing a union of states with profoundly different social orders, values, and
interests. It is impossible, in our constitutional tradition, to construct well-informed views about
the subject of federalism – and today’s conflicts over the respective powers and limits of state
and national government – without a fairly deep understanding of federalism’s past. So, another
goal will be to equip you with such an understanding.
One main theme in our study of federalism will be the protracted conflicts and
accommodations between North and South and Free Labor and Slavery. The coming of Civil War
repays careful attention because the Civil War remains the most important constitutional crisis in
our history. The War and its aftermath, the period known as Reconstruction, and the Civil War
and Reconstruction Amendments (13th, 14th, and 15th Amendments), constituted a Second
Founding, no less significant than the first. The authority of the national government over the
states was transformed, and with it, the meaning of American democracy. From a slaveholding,
racially exclusive republic, America reconstituted itself into a racially inclusive republic of equal
citizens. We will study this Second Founding, then its unraveling in the constitutional law and
politics of the late 19th century, and then its revival in the Civil Rights era of the mid-20th century.
As a particularly rich entry point into the uses of history in constitutional interpretation and the
uses and abuses of originalism, we will devote some time at the beginning of the semester to
current controversies over gun rights – as well as a glimpse at the controversy sparked by the
Supreme Court’s recent use or abuse of originalism in its decision overturning Roe v. Wade last
term.
READING MATERIALS, READING ASSIGNMENTS
All our readings this semester will be in two volumes of materials that I have prepared for
this course. Volumes I and II are posted on CANVAS under Files. Each of the several
sections of Volumes I and II are found as separate PDFs; each volume is also posted as a single
long PDF file.
I will be providing you with “Reading Assignments - Notes & Questions” for every class,
and these notes and questions will help guide your reading. For some classes, I also will include
“Debate & Role-Playing Assignments.” These Notes, Questions, Debate and Role-Playing
Assignments will be emailed to you (using CANVAS) every Tuesday evenings, for the following
week’s Monday and Tuesday class meetings. They will also be posted in the Files section of
CANVAS.
Reading assignments will range from 20-50 pages per class. The shorter assignments will
consist of cases and primary sources; the longer ones will consist chiefly of historical narratives.
Remember, reading historical narrative is very different from the equivalent amount of legal or
law review material. You should be able to grasp the events and issues at hand, the author's
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argument and supporting evidence, as well as her insights and passions -- and maintain a
considerably faster pace than you do reading case law. Reading primary sources like political
speeches and political pamphlets with an eye for the often rich and sustained constitutional
arguments they contain involves somewhat more detailed work. You will want to examine how
the speakers and authors weave together immediate legislative or campaign issues with
constitutional claims. What kinds of constitutional authority (text, precedent, history, structure,
and so on) and what kinds of constitutional-historical narratives do they employ? And how do
these differ – and not differ - from constitutional arguments in the courts?
Even when an assignment consists of judicial opinions, you should not read them as though this
were a course on contemporary law. Your task is not doctrinal mastery. Try to figure out what is
at stake – politically, socially, economically, and ideologically – in the case. Also try to identify
the main contours of doctrine and underlying norms or principles, the key sources of
constitutional authority (precedent, history, structure, and so on), the key rhetorical moves and the
ambiguities and evasions, if you can. And also ask yourself what the cases reveal about the
broader conflicts and changes surrounding them, and the worlds and ways of life out of which the
opinions emerge and about the judges' and lawyers' understandings of, and relations with, those
worlds.
How we will read and explore cases and other legal materials will emerge clearly after a few
classes. Also, the Notes and Questions I supply in the “Reading Assignments - Notes &
Questions” for each class will greatly help to guide your reading.
CLASS ATTENDANCE, PARTICIPATION, RULE OF MUTUAL RESPECT &
PROHIBITION ON RECORDING
Students will be expected to prepare for, attend, and participate in class discussions, mock
debates and other role-playing experiments assigned in advance of individual classes. In the event
that you will be unable to attend, or in the event that you will have to attend class unprepared,
please email me in advance. I strongly prefer that you attend class even if you have not
prepared, so I would encourage you to come to class, but email me in advance; I will not call on
you. Note: If you are absent or unprepared on more than a few occasions, I reserve the right to
factor that into your final grade.
The Law School policy on the subject of class attendance is: Law School’s Attendance Policy.
In addition, I expect all of us to treat one another with mutual respect and consideration. I
often will ask students to take sides in debates and arguments, which are bound NOT to match up
with their personal views and values. Such role-playing is a valuable part of studying the past. It
only works if we bear in mind that we are exploring the past and not treat one another as though
we were personally attached to the roles we take up.
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For similar reasons of mutual respect and the free exchange of ideas, I hereby forbid students
from recording class discussions. Any recording of classes will be done by me and my assistants
for use approved by me and the administration.
WEEKLY “ASSOCIATES,” THEIR RESPONSIBILITIES & WRITING ASSIGNMENTS in form
of “RESPONSE PIECES”
Each week (starting Monday, January 23), a group of roughly 4 or 5 students will be
assigned as “associates.” Every student will be an “associate” two times during the semester.
By Tuesday evening, January 17, Mr. Morgan and I will prepare and post on CANVAS under
Files, a Schedule of “Associates” Assignments for the semester. We will also email the
Schedule to each of you via CANVAS.
The burden is on you to inform Mr. Morgan (tyshaun.morgan@law.utexas.edu) no later than
9 a.m. on Tuesday, January 17, if there is any particular week when you will NOT be able to
participate as an Associate.
Associates have two different kinds of responsibilities.
1. Associates must be prepared to be especially keen discussants, discussion leaders (we
will occasionally break up and have small group discussions), debaters and roleplayers. That means they should be prepared to address the questions I raise in my Notes
& Questions and to single out what seem to them key issues. On days when I assign
everyone to prepare to take part in a mock debate (e.g., about whether or not to ratify the
1787 federal Constitution), and assign roles in that debate, I will expect Associates to be
especially well prepared and to take leading roles in the debate.
2. Associates will be required to write two short (roughly 300 to 400 word) response
pieces – one per week for each of the two weeks in which they are assigned to be
associates. The response piece will be a written response to one of the Questions I pose
in the “Reading Assignment - Notes and Questions” for the Tuesday class of the
relevant week. In the Reading Assignment, I will indicate the particular Question that
Associates will have to address in their response pieces.
The response pieces will be due no later than 6 p.m. on Monday evenings. You will post
your response piece on the Discussion section in Zoom, under the relevant week (e.g.,
“Response Pieces for Tuesday, January 24”). Everyone should read their fellow
students’ response pieces before the Tuesday class.
I will provide comments on your response pieces, and I will post those comments in the
Reply box in the Discussion section, so everyone has the benefit of my comments. Your
response pieces also will be graded, but I won’t be posting the grades. I’ll email the
grade to you. For purposes of your final grade, I will factor in the higher of the two
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grades you receive on your response pieces. (See below for further discussion of
grading.)
GRADING, FINAL EXAM
As noted, students will receive grades on their two response pieces. The higher of your two
grades will count as 15% of your final grade. The remaining 85% of your grade will be based
on your final exam.
Students also will receive a grade for class participation, with particular attention to your
weeks as an associate. However, this grade will not be averaged into your overall final grade
UNLESS it will give your grade an upward boost. If so, it will count for 20%, with the response
pieces and exam counting proportionately less.
The final exam will be a “floating” 24-hour take-home exam, with two essay questions with
strict word limits. In the FILES section of CANVAS, I have posted examples of past 24-hour
take-home exams for this course with the identical format, and also an assortment of first-rate
exam answers.
The exam will be administered by the Student Affairs Office using Exam4. You may
choose when to begin the exam anytime during the regular final exam period. All floating
exams should be completed no later than the second Thursday of the exam period at 4:30pm.
This semester that will be Thursday, May 4 at 4:30 pm.
Student Workload
This course complies with the Law School’s Credit Hour Policy and will require at least 42.5
hours of total student work per credit during the semester (including the final exam period).
Classroom Safety and COVID-19
The University provides guidance and information to help us preserve our in person learning
environment.
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Accessibility Statement
The Law School is committed to creating an accessible and inclusive learning environment
consistent with university policy and federal and state laws. If you are a student with a disability,
or you think you may have a disability, and may need academic accommodations, please contact
the Division of Diversity and Community Engagement, Disability and Access (D&A) for
information and assistance. If you are already registered with D&A, please deliver your
Accommodation Letter to the Student Affairs Office as early as possible in the semester to
arrange your approved accommodations. If you have accommodations for exams, arrangements
must be made with the SAO at least a week before the exam.
Because the Law School operates primarily on an anonymous grading system where possible,
academic accommodations are coordinated through the Student Affairs Office. Faculty members
are included in the process only when needed to implement classroom accommodations.
(See next page for page numbers for the readings)
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VOLUME I
I.
INTRODUCTION:
HISTORY AS AUTHORITY AND HISTORY AS A WAY OF UNDERSTANDING
CHANGE AND CONTINUITY – SITUATING OURSELVES IN RELATION TO
THE CONSTITUTIONAL PAST
Heller as a Case Study in “Originalism”
District of Columbia v. Heller, 554 U.S. 570 (2008) ....................................................... 1
District of Columbia v. Heller (Stevens dissenting) ...................................................... 10
District of Columbia v. Heller (Breyer dissenting) ........................................................ 17
Reflecting on Originalism and the Uses of History
Excerpts from Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism
In Heller, 122 HARV. L. REV. 191 (2008) ................................................................. 21
Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989) ............ 35
Jack M. Balkin, Living Originalism (2011) 3-12, 16-20 ............................................... 40
A Glimpse at Originalism on Today’s Supreme Court and in the Lower Courts – and at
Professor Siegel’s Reaction to Dobbs
Reva B. Siegel, The Trump Court Limited Women’s Rights Using 19th Century
Standards, THE WASHINGTON POST, June 22, 2022………………………………….51A
N.Y. State Rifle & Pistol Assoc’n v. Bruen, 597 U.S. __; 142 S.Ct. 2111 (2022) -The Trump
Court’s “History Only” Reading of Heller…………………………….………………………51D
Bruen in the Lower Courts – a Texas case involving a federal bar on gun possession by persons
under state court restraining orders for domestic abuse – U.S. v. Perez-Gallan, 2022 U.S. Dist.
LEXIS 20758 (W.D. Tex.2022)………………………………………………………………51F
II.
REVOLUTION AND THE EMERGENCE OF THE IDEA OF POPULAR
SOVEREIGNTY AS THE BASIS OF LAW
James Otis, “The Rights of the British Colonies” (1764) .............................................. 52
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Material on Writs of Assistance ..................................................................................... 54
Source: Stephen Presser and Jamil S. Zainaldin, eds., Law and Jurisprudence in American History (7 th ed., 2009) 65-91.
Farah Peterson, Black Lives and the Boston Massacre… ..............................................82
Source: The American Scholar (Winter 2019)
Hiller Zobel Response, Peterson Reply .........................................................................97
Source: The American Scholar (Winter 2019)
Thomas Paine, “Common Sense” (1776) .................................................................... 101
Introduction from: Melvin Urofsky and Paul Finkelman, eds., Documents of American Constitutional and Legal History,
Vol. 1 (2nd ed., 2002) 45.
The Declaration of Independence (1776) .................................................................... 106
III.
REPUBLICAN STATE CONSTITUTION-MAKING
Virginia Constitution (1776) ........................................................................................ 109
Pennsylvania Constitution, with introductory note (1776) .......................................... 115
Note on Early State Constitutional Provisions Against Concentrations of Land
and Wealth ....................................................................................................................127
Adapted from JOSEPH FISHKIN & WILLIAM FORBATH, THE ANTI-OLIGARCHY CONSTITUTION (forthcoming, Harvard U Press 2022)
IV.
THE FEDERAL CONSTITUTION: CREATION AND RATIFICATION,
POLITICAL AND INTELLECTUAL CONTEXTS
Articles of Confederation and the Origins of the U.S. Constitution, with
James Madison, Vices of the Political System of the United States (1787) ................ 129
Source: Geoffrey R. Stone, et. al., Constitutional Law (2009) 8-12.
The Convention at Philadelphia
Debating the Rules at the Philadelphia Convention .................................................... 134
Source: Daniel Farber and Suzanna Sherry, eds., A History of the American Constitution (1990) 26-29
Debating the Virginia Plan at Philadelphia ................................................................. 137
Source: Id, 29-36.
The Virginia Plan ......................................................................................................... 145
Source: Id, 417-418.
Questions of Representation at the Convention: States v. Individual Citizens
and the Problem of Popular Participation .................................................................... 147
Source: Id, 113-114.
Debating the Slave Trade ............................................................................................. 149
Source: Id, 167-170.
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The Political Economy of Slavery ................................................................................153
Source: JOSEPH FISHKIN & WILLIAM FORBATH, THE ANTI-OLIGARCHY CONSTITUTION (forthcoming, Harvard U Press
2022)
The Ratification Debates
Constitution of the United States ................................................................................. 157
Selected Anti-Federalist Writings ................................................................................ 169
Source: Farber and Sherry (1990).
Federalist No. 10 (1787) .............................................................................................. 190
Excerpts from Federalist No.'s 45 & 46 (1788) ........................................................... 194
Federalist No. 51 (1788) .............................................................................................. 197
Federalist No. 78 (1788) .............................................................................................. 200
V.
THE SEDITION ACT:
CLASHING CONSTITUTIONAL OUTLOOKS AND COMPETING CLAIMS OF
CONSTITUTIONAL-INTERPRETATIVE AUTHORITY
The Sedition Act (1798)............................................................................................... 204
The Sedition Act Trials, Encapsulated, in FJC, Federal Trials & Great Debates in
United States History….…………………………………………………… 204A-C
Excerpt from A. Koch, Jefferson and Madison: The Great Collaboration (1964) ......... 205
The Virginia and Kentucky Resolutions (1798) ............................................................ 219
Madison’s Report on the Virginia Resolutions (1800) .................................................. 223
VI.
THE MARSHALL COURT, THE ESTABLISHMENT OF JUDICIAL REVIEW,
AND THE BEGINNINGS OF THE CONTEST OVER JUDICIAL SUPREMACY
Excerpt from Larry Kramer, The People Themselves: Popular Constitutionalism
and Judicial Review (2004) ......................................................................................... 232
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ...................................................... 244
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VII.
THE BANK OF THE UNITED STATES – A STUDY IN NATIONAL POWER,
MODES OF CONSTITUTIONAL INTERPRETATION AND CLASHES OVER
THE ALLOCATION OF INTERPRETIVE AUTHORITY
Materials on the Bank of the United States ................................................................. 253
Source: Paul Brest, et al., Processes of Constitutional Decisionmaking (5th ed., 2006) 27-38.
McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819) ............................................. 264
Letter from James Madison to Justice Spencer Roane (September 2, 1819)............... 291
Andrew Jackson, Veto Message on Bank Renewal (1832) ......................................... 294
Source: Brest, et al. (2006) 74-77.
Excerpts from Gerald Leonard, Party as a “Political Safeguard of Federalism”:
Martin Van Buren and the Constitutional Theory of Party Politics
54 RUTGERS L. REV 221 (2001) ................................................................................. 299
VIII. THE NULLIFICATION CRISIS: CONSTITUTIONAL CONFLICTS,
ARGUMENTS AND INTERPRETATIONS OUTSIDE THE COURT
John C. Calhoun, South Carolina Exposition (1828)....................................................310
Source: Urofsky and Finkelman (2002) 238-241.
South Carolina Ordinance of Nullification (1832) ...................................................... 314
Source: Urofsky and Finkelman (2002) 248-250.
Andrew Jackson’s Nullification Proclamation (1832) ................................................. 317
Madison, Letters on Nullification (1832) .................................................................... 333
John C. Calhoun, Speech on Congressional Authority Over Slavery (1847) .............. 337
IX.
ANTISLAVERY AND THE LAW
Anti-Slavery Jurists and Pro-Slavery Constitution?
Excerpt from Leonard Levy, Law of the Commonwealth and Chief Justice Lemuel
Shaw (1957) 61-72 ....................................................................................................... 343
Prigg v. Pennsylvania, 41 U.S. 539 (1842) ................................................................. 354
Excerpt from Leonard Levy, “The Fugitive Slave Law,” Law of the
Commonwealth
and Chief Justice Lemuel Shaw (1957) 78-85. ............................................................ 363
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X.
DRED SCOTT
Scott v. Sandford, 60 U.S. 393 (1857) ......................................................................... 375
Source: Paul Brest, et al. (2006) 226-253.
Editorial on the Dred Scott Decision, New York Tribune (March 7, 1857) ................. 400
Editorial on the Dred Scott Decision, Chicago Tribune (March 15, 1857) ................. 401
Abraham Lincoln, "A House Divided," Speech at Springfield (June 16, 1858).......... 403
Source: P.M. Angle, ed., Created Equal? The Complete Lincoln-Douglas Debates of 1858 (1962) 1-9.
Stephen Douglas, Speech at Chicago (July 9, 1858) ................................................... 412
Source: Id, 12-15.
Lincoln-Douglas Debates of 1858
Introduction from P.M. Angle, ed., Created Equal? The Complete LincolnDouglas Debates of 1858 (1962) pp. xviii – xxx (excerpts) ........................................ 426
Abraham Lincoln & Stephen Douglas, excerpts from the Ottowa Debate (1858) ...... 432
Frederick Douglass, “The Constitution of the United States: Is It Pro-Slavery
or Anti-Slavery?” (March 26, 1860) ............................................................................ 443
Source: Paul Brest, et al. (2006) 253-257.
XI.
SECESSION, EMANCIPATION AND OTHER CONSTITUTIONAL
QUESTIONS OF THE CIVIL WAR
The Question of Secession
First Inaugural Address (1861) .................................................................................... 448
Judah Benjamin Argues in Favor of the Right of Secession (1860) ............................ 455
Lincoln and the Question of Emancipation
Letter to Orville Browning (1861) ............................................................................... 458
Source: Scott Hammond, et al., eds., Classics of American Political and Constitutional Thought (2007) 1097-1098.
Proclamation Revoking General Hunter’s Emancipation Order (1862) ...................... 460
Source: Hammond, et al (2007) 1099-1100.
Address on Colonization to a Committee of Colored Men, Washington, D.C.
(1862) ........................................................................................................................... 462
Source: Hammond, et al (2007) 1100-1102.
Emancipation Proclamation (1862) ............................................................................. 465
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Source: Christopher Waldrep, Race and National Power: a Sourcebook of Black Civil Rights from 1862 to 1954 (2011) 2123.
Reactions to the Emancipation Proclamation
Soldiers of the 31st Illinois Infantry Regiment
React to the Emancipation Proclamation, 1863 ........................................................... 467
Source: Waldrep (2011) 26-27.
Benjamin R. Curtis, Northern Criticism of the Emancipation Proclamation .............. 468
Source: Brest, et al (2006)
Gettysburg Address (1863) .......................................................................................... 470
Source: Waldrep (2011) 23-24.
Second Inaugural Address (1865) ................................................................................ 471
VOLUME II
XII.
THE RECONSTRUCTED CONSTITUTION AND STRUGGLES OVER
NATIONAL POWER AND THE MEANING OF FREEDOM AND CITIZENSHIP
Black National and State Conventions, 1864-1867 ......................................................... 1
Eric Foner, “The Making of Radical Reconstruction,” in A Short History of
Reconstruction (1990) ...................................................................................................... 6
The Drafting of the Fourteenth Amendment ................................................................. 17
Source: Farber and Sherry (1990)
The House Debates on the Fourteenth Amendment ...................................................... 20
Source: Farber and Sherry (1990)
Senator Howard introduces the Fourteenth Amendment in the Senate,
May 23, 1866 ................................................................................................................. 33
Paul Brest, et al, “The Unusual Procedural History of the Fourteenth
Amendment” .................................................................................................................. 37
Congress Debates the Fifteenth Amendment ................................................................. 40
Source: Farber and Sherry (1990)
XIII. RECONSTRUCTION AMENDMENTS AND STATUTES IN THE SUPREME
COURT
Robert M. Goldman, “Massacre at Colfax Courthouse" in Reconstruction and
Black Suffrage (2001) 42-59 ....................................................................................... 46
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U.S. v. Cruikshank, 92 U.S. 542 (1875) .......................................................................... 55
Strauder v. West Virginia, 100 U.S. 303 (1880) ............................................................. 61
The Civil Rights Act (1875) ........................................................................................... 64
The Civil Rights Cases, 109 U.S. 3 (1883) ..................................................................... 66
Jim Crow and Disenfranchisement in the Court
Plessy v. Ferguson, 163 U.S. 537 (1896) ....................................................................... 73
Giles v. Harris, 189 U.S. 475 (1903) .............................................................................. 80
XIV. BROWN V. BOARD OF EDUCATION AND THE ORIGINS OF THE SECOND
RECONSTRUCTION
Harbinger: Footnote 4
U.S. v. Carolene Products Co., 304 U.S. 144 (1938) ....................................................... 82
The Road to Brown v. Board of Education
Brief of the U.S. as Amicus Curiae in McLaurin v. Oklahoma State
Regents and Sweatt v. Painter (1950)............................................................................. 83
Sweatt v. Painter, 339 U.S. 629 (1950) .......................................................................... 87
Brown v. Board
[Law Clerk] William H. Rehnquist's Memorandum to Justice Robert Jackson on
Brown ............................................................................................................................. 91
Justice Jackson’s Memorandum on Brown ..................................................................... 94
Brown v. Board of Education, 347 U.S. 483 (1954) ........................................................ 98
Brown v. Board of Education (Brown II), 349 U.S. 294 (1955) ................................... 104
"Massive Resistance"
The Southern Manifesto (1956) ................................................................................... 108
Cooper v. Aaron, 358 U.S. 1 (1958)............................................................................. 111
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