Office: JH 349A
Office Hours: M/W 6:15 – 7:00 p.m.
AMERICAN CONSTITUTIONAL HISTORY
H348 M/W 7-8:15 p.m.
JH 301
The Course
Covering all of our constitutional history in one semester would be like touring the
Louvre on roller blades. (“Hey, I think that might have been the Mona Lisa back there!”)
We will therefore focus on the most consequential, controversial, and topical stories our
rich constitutional history has to tell us.
We will begin at the beginning, with the short-lived Articles of Confederation, then the
Constitutional Convention in Philadelphia and the ratification of both the Constitution
and the Bill of Rights. We will see how the Supreme Court made itself the ultimate
arbiter of the Constitution’s meaning, an outcome that was by no means inevitable. We
will examine the Court’s role in the run-up to the Civil War and study the post-War
amendments to the Constitution. We will follow the series of cases in which the Supreme
Court held that almost all of our constitutional rights are protected against infringement
by the states and consider whether the rights enumerated in the Constitution are the only
rights we have. We will trace the path of the Civil Rights movement from desegregation
to affirmative action. We will study selected free speech cases and assess the Court’s
efforts to balance the freedom of religious expression against the prohibition of any
government establishment of religion. We will review the Court’s recent efforts to
address laws that discriminate on the basis of sexual orientation and debate the issue of
gay marriage. We will examine the Court’s recent decisions limiting the scope of the
president’s power as commander-in-chief. Finally, we will examine the Court’s 2000
decision in Bush v. Gore, and assess what the Court’s role is and ought to be.
As I hope you will come to see, there are some wrong answers, but for many (perhaps
most) constitutional questions there isn’t only one “right” answer. My goal isn’t to teach
you what the Constitution means. Instead, I want to help you learn how to think about
constitutional questions, with the benefit of our rich constitutional history. Informed
classroom discussion will be a crucial part of that process. Preparation, attendance, and
participation will be very important.
Course Readings
While other readings will be provided to you, these books are required for the course:
Erwin Chemerinsky, Constitutional Law: Principles and Policies
Robert G. McCloskey and Sanford Levinson, The American Supreme Court
Grades
Your course grade will be determined in the following manner:
Attendance/Participation = 30%
Midterm = 30%
Final = 40%
I use a standard scale for determining your grades: 100-93 = A, 92-90 = A-, 89-87 =B+,
86-83 = B, 82-80 = B-, 79-77 = C+, 76-73 = C, 72-70 = C, 69-67 =D+, 66-63 = D,
62-60 = D-, and 59-0 = F.
I hope all of you do well.
Cheating
The University of Butler mandates that cheating of any kind will not be tolerated, and
violators will be severely penalized. I hope that this issue will not arise. It may seem
trite, but those who cheat truly do cheat themselves. The opportunity to learn new ideas
that will shape your life is the greatest gift a wonderful university like Butler has to offer.
No one should trade that away grasping for a few extra points. It’s not just wrong, it’s
just not worth it. In any event, I am happy to work with anyone who wants help.
Accommodation for Disabilities
It is the policy and practice of Butler University to make reasonable accommodations for
students with properly documented disabilities. Written notification from Student
Disability Services is required. If you are eligible to receive an accommodation and
would like to request it for this course, please discuss it with me and allow one week
advance notice. Otherwise, it is not guaranteed that the accommodation can be received
on a timely basis. Students who have questions about Student Disability Services or who
have, or think they may have, a disability (psychiatric, attentional, learning, vision,
hearing, physical, medical, etc.) are invited to contact Student Disability Services for a
confidential discussion in Jordan Hall 136 or by phone at extension 9308.
Course Path
8/26: Introduction
8/31: Founding: The Articles of Confederation, the Constitutional Convention, and
Ratification
- Constitutional Topic: Articles of Confederation
(http://www.usconstitution.net/consttop_arti.html)
- Constitutional Topic: The Constitutional Convention
(http://www.usconstitution.net/consttop_ccon.html)
- A More Perfect Union: Creating the Constitution of the United States
(http://www.archives.gov/exhibits/charters/constitution_history.html)
- Chemerinsky, §§ 1.1 – 1.3
- United States Constitution (Chemerinsky, pp. 1269 – 1285)
9/2: Complete Founding Discussion
9/9: The Marshall Court Establishes Federal Judicial Power
- Chemerinsky, §§ 2.1 - 2.2.1
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9/14:
9/16:
9/21:
9/23:
9/28:
9/30:
10/5:
10/7:
- McCloskey & Levinson, Ch. 2
Complete Federal Judicial Power Discussion
- McCloskey & Levinson, Ch. 3
The Taney Court’s Disastrous Tangle with Slavery
- McCloskey & Levinson, Ch. 4
The Post-War Amendments’ Inauspicious Beginnings
- United States Constitution, Amendments 13, 14, & 15 (Chemerinsky, pp.
1280-1281)
- Chemerinsky, pp. 494-497
- McCloskey & Levinson, pp. 76-81
The Bill of Rights Is Selectively Incorporated, But Are Those the Only Rights We
Have?
- Chemerinsky, pp. 499-507
- United States Constitution, Amendment 9 (Chemerinsky, p. 1279)
- Randy Barnett, “Kurt Lash’s Majoritarian Difficulty
(http://legalworkshop.org/2009/05/31/kurt-lash’s-majoritarian-difficulty)
- FindLaw Annotation
(http://caselaw.lp.findlaw.com/data/constitution/amendment09/)
Equal Protection: From “Separate But Equal” to Desegregation with “All
Deliberate Speed”
- Chemerinsky, pp. 701-709
- McCloskey & Levinson, pp. 139-154
- Plessy v. Ferguson
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=163&invol=
537)
- Brown v. Board of Education
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=347&invol=
483)
Equal Protection: “Massive Resistance”
- Chemerinsky, pp. 722-726
- McCloskey & Levinson, pp. 220-225
- Cooper v. Aaron
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&v
ol=358&page=1)
- Griffin v. County School Board
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&v
ol=377&page=218)
Equal Protection: State Action, Private Discrimination, and the Civil Rights Act
- Chemerinsky, pp. 261-262; 288-301
- Civil Rights Cases
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&v
ol=109&page=3)
- Atlanta Motel v. United States
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&v
ol=379&page=241)
Equal Protection: Affirmative Action
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-
10/12:
10/14:
10/19:
10/21:
10/26:
10/28:
11/2:
11/4:
11/9:
11/11:
Chemerinsky, pp. 732-748
University of California Regents v. Bakke
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=438&invol=
265)
- Grutter v. Bollinger
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=
02-241)
- Ricci v. Destefano (http://www.law.cornell.edu/supct/html/07-1428.ZS.html)
Conclude Equal Protection Discussion
Midterm Exam
To What Extent Can History Be Our Guide: Originalism and Other Modes of
Constitutional Interpretation
- Chemerinsky, pp. 13-28
- District of Columbia v. Heller
(http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf)
Freedom of Expression and Obscenity: Will We Know It When We See It?
- Chemerinsky, pp. 922-940; 1017-1032
Freedom of Expression: Content Regulation of Broadcast Media
- Chemerinsky, pp. 1031-1044; 1172-1174
- Red Lion Broadcasting Co. v. FCC
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=395&invol=
367)
- FCC v. Pacifica Foundation
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=438&invol=
726)
Freedom of Expression: Expressive Conduct
- Chemerinsky, pp. 1063-1070
Religion: Tension Between the Free Exercise Clause and the Establishment
Clause
- Chemerinsky, pp. 1181-1199
- Allegheny County v. Pittsburgh ACLU
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=492&invol=
573)
What Is an Establishment of Religion?
- Chemerinsky, pp. 1202-1207; 1215-1227
- Elk Grove Unified School District v. Newdow (O’Connor Concurring
Opinion)
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=
02-1624)
Conclude Establishment of Religion Discussion
Discrimination Based on Sexual Orientation
Chemerinsky, pp. 787-789; 844-846
- Lawrence v. Texas
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=
02-102)
4
-
11/16:
11/18:
11/23:
11/25:
11/30:
12/2:
12/7:
12/9:
12/16:
Loving v. Virginia
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=388&invol=
1)
Reproductive Rights
- Chemerinsky, pp. 819-844
- Griswold v. Connecticut
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=381&invol=
479)
- Roe v. Wade
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=410&invol=1
13)
Continue Reproductive Rights Discussion
- Planned Parenthood v. Casey
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=505&invol=
833)
- Stenberg v. Carhart
(http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=
99-830)
Jenkins Chapters 1-4
Thanksgiving Break
Thanksgiving Break
The President’s Power as Commander-in-Chief
- Chemerinsky, pp. 338-443; 376-382
- Hamdan v. Rumsfeld (http://www.law.cornell.edu/supct/html/05184.ZS.html)
- Boumediene v. Bush (http://www.law.cornell.edu/supct/html/061195.ZS.html)
Continue Presidential Power Discussion
The Court Jumps Into the 2000 Presidential Election
- Chemerinsky, pp. 890-897
- Bush v. Palm Beach County Canvassing Board
(http://www.oyez.org/cases/2000-2009/2000/2000_00_836)
- Bush v. Gore (http://www.law.cornell.edu/supct/html/00-949.ZPC.html)
Semester Wrap-Up
Final Exam
This schedule may be amended from time to time as circumstances may require. I will
republish it any time that occurs.
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