Approved by University Studies Sub-Committee February 8, 2006. A2C2 action pending
Approved by Faculty Senate March 6, 2006
Revised Flag Proposal for History 488
Catalogue Description
488 - American Constitutional History-3 S.H.
A study of the origins, growth and development of the United States Constitution, the
role and power of the Supreme Court, and judicial theory in the context of American
political, social, cultural and economic history. The class develops the students’ ability to
express their ideas clearly in written form through critical analysis papers. Prerequisite:
HIST 150 or HIST 151 or instructor's permission. Grade only.
General Course Information
History 488, American Constitutional History, is a writing flag course in the University
Studies Program. The course requires students to examine the development of American
Constitutional legal institutions and doctrine, and to apply critical thinking to a writing
project addressing a current constitutional controversy. Students will learn how the
Supreme Court has addressed the issues of constitutionalism, federalism, divided powers,
civil rights and other concerns in the context of social, economic, cultural and political
change. Students will select a current constitutional controversy, examine its history, and
using historical primary and secondary sources, write a 15-20 page issue paper as their
final project in the course.
As a writing flag course, History 488, American Constitutional History, is taught in a
section of a maximum of 20 students that allows for clear and close professor-student
interaction, guidance, criteria and feedback. Each student must meet with the professor
in the topic selection process, and must turn in throughout the semester a clear thesis
statement, a bibliography of sources, and a rough draft at approximately week 12 for
exchange between students. The professor provides a critique on the steps throughout the
semester including regular feedback on student drafts of papers, and the student-critiqued
drafts are reviewed by the professor. In addition, the students write three essay exams
that require using the history of American Constitutional development to answer the
questions.
Writing Flag courses must include requirements and learning activities that promote
student abilities to:
a) practice the process and procedures for creating and completing successful
writing in their fields;
b) understand the main features and uses of writing in their fields;
c) adapt their writing to the general expectations of readers in their fields;
d) make use of the technologies commonly used for research and writing in their
fields; and
e) learn the conventions of evidence, format, usage, and documentation in their
fields.
Rationale
a) Students will practice the processes and procedures for creating and completing
successful writing in their fields.
Students will practice the conventions of historical legal writing in this class. They
will practice the customary research that writers use, examining the cases, primary
sources, legal publications and historical analyses about a constitutional controversy
of their choice. They will learn to use legal citation format appropriately and will
produce a scholarly critical paper on that constitutional issue.
b) Students will understand the main features and uses of writing in their fields.
Students will learn the main features and uses of constitutional historical writing by
reading both constitutional cases and critical analysis and writing in the field. The
constitutional scholars emphasize the nature of constitutional criticism, as well as the
nature of critical argument and assessment.
c) Students will adapt their writing to the general expectation in their fields.
In the writing of their constitutional critique papers and in their essay exams, students
will learn to write in a logical, concise and critical fashion while telling a good
historical story. The class work and the writing exercises will require the students to
look analytically at their sources and make their writing choices concise and accurate.
In addition, the use of a critical paper allows the students room for individual
interpretation using clear analysis essential for a meaning historical work.
d) Students will make use of the technologies commonly used for research and
writing in their fields.
Students will gain familiarity with the substantial and growing body of primary and
secondary materials available in the library and by using internet resources. They
will use various technologies to search for primary and secondary documents on their
chosen subjects, learn to discern the most critically accurate sources, and procure for
usage the most relevant primary and secondary materials on their subject.
e) Students will learn the conventions of evidence, format, usage and documentation
in their fields.
Student will learn the conventions of evidence, format, usage, documentation, and
critical analysis of historical/constitutional analysis and writing by applying the
techniques discussed in this class. The papers will require the students to use
standard academic formats, and that their analysis and conclusions be documented by
the primary source material researched. The students will conclude the course with a
clear understanding of the style and critical analysis necessary to write a successful
and competent constitutional paper.
American Constitutional History
History 488.01
Monday/Wednesday/Friday 1100-1150AM
Minné 235
Course Syllabus
Professor: Kurt Hohenstein
Office: Minné 209
Office Hours: Mondays & Wednesdays, 1-300 pm, or by appointment.
Email: khohenstein@winona.edu
Phone: Office 507-457-5411, Home 507-689-0657
Course Description and Student Learning Goals: This course is intended to give students a basic
knowledge of American constitutional history. Constitutional history is an important part of the broader
scope of American political history, and the disputes about the meaning of the constitution shaped how the
Supreme Court responded to political, social, cultural and economic disputes. The constitution established
our federal structure of government, but did not resolve all the issues related to separation of powers and
the struggle for supremacy within the national government. Neither did it resolve the conundrum of
American federalism and the relationship between national and state powers. Finally, it left open to vast
interpretation issues over the power of government to regulate capitalism, disputes about private property
rights and public policy, and issues concerning economic and civil liberties of individuals and groups. The
constitutional history we study will involve examining major cases decided by the Court, but only within
the context of the major political, economic, social, and cultural events of US history, and with special
focus on the role of the Constitution and the Supreme Court as one branch of judicial arbitration in a wide
assortment of ongoing debates involving those questions.
By the end of this course, you will have
1. a working knowledge of the US Constitutional structure and operation;
2. be able to understand the complexity of constitutional law and process without being
overwhelmed by it;
3. be able to relate that history to continuing controversies; and
4. be able to articulate those ideas verbally and in writing by:
a. Examining primary sources, secondary sources and legal criticism and analyze them for
context and content;
b. Learn about the nature and type of Constitutional critical writing and determine the
elements of good constitutional critique;
c. Write and rewrite a critical constitutional paper on a controversy of your choosing;
d. Use proper format and citations for primary and secondary sources;
e. Learn critiquing skills by reviewing and making constructive comments on a classmate’s
draft paper; and
f. Sharpen your skills writing critical analytical prose in concluding your project.
Catalogue Description
488 - American Constitutional History-3 S.H.
A study of the origins, growth and development of the United States Constitution, the role and power of the
Supreme Court, and judicial theory in the context of American political, social, cultural and economic
history. The class develops the students’ ability to express their ideas clearly in written form through
critical analysis papers. Prerequisite: HIST 150 or HIST 151 or instructor's permission. Grade only.
University Studies Writing Flag Information
History 488, American Constitutional History, is a writing flag course in the University Studies Program.
The course requires students to examine the development of American Constitutional legal institutions and
doctrine, and to apply critical thinking to a writing project addressing a current constitutional controversy.
Students will learn how the Supreme Court has addressed the issues of constitutionalism, federalism,
divided powers, civil rights and other concerns in the context of social, economic, cultural and political
change. Students will select a current constitutional controversy, examine its history, and using historical
primary and secondary sources, write a 15-20 page issue paper as their final project in the course.
As a writing flag course, History 488, American Constitutional History, is taught in a section of a
maximum of 20 students that allows for clear and close professor-student interaction, guidance, criteria and
feedback. Each student must meet with the professor in the topic selection process, and must turn in
throughout the semester a clear thesis statement, a bibliography of sources, drafts of papers to be critiqued
by the professor, and a rough final draft at approximately week 12 for exchange between students. The final
paper will be due to the professor after all drafts have been reviewed and changes made by each student
completed. The professor provides a critique on the papers and steps throughout the semester, and the
student-critiqued drafts are reviewed by the professor. In addition, the students write three essay exams
that require using the history of American Constitutional development to answer the questions. The
professor will also provide a critique of the short essay questions intended to explain and assist in the
learning of historical writing techniques and practices.
Writing Flag courses must include requirements and learning activities that promote student abilities to:
f)
g)
h)
i)
j)
practice the process and procedures for creating and completing successful writing in their fields;
understand the main features and uses of writing in their fields;
adapt their writing to the general expectations of readers in their fields;
make use of the technologies commonly used for research and writing in their fields; and
learn the conventions of evidence, format, usage, and documentation in their fields.
Required Readings:
Urofsky, A March of Liberty, Volume I and II
Irons, A People’s History of the Supreme Court
** Cases and Readings will also be used and will be available on the Course Website found at
URL: http://course1.winona.edu/khohenstein/USConstitutionalHistory/
or on Blackboard as announced in class**
You are required to read all of the books and the material assigned for the class. We will use the books in
class discussion. All of the books can be purchased from the Winona State University bookstore, or you
may purchase them online, but be sure to obtain the correct edition if you buy them online.
Selected Primary Source Readings (Blackboard and Class Webpage): The selected primary source
readings will supplement the course-book, and will be on Blackboard or on the Class webpage as they are
needed during class. You are responsible for keeping up with and being prepared to discuss the readings.
Readings and Class Participation: While this is a comprehensive course on American Constitutional
history and there will be regular lectures each week, much of the class will be devoted to in-class
discussion of the readings and primary sources assigned. I expect each of you to offer your thoughts,
comments and questions about the readings, with discussions intended to examine the general themes, and
to broaden our understanding of the materials, concepts and history we will be learning. We will use the
material to uncover the ideas and themes present in the events surrounding the making of the US
Constitution and its interpretation and to relate those events, where appropriate, to current events and
themes. To that end, you must read the assigned material and primary sources before the lecture and
discussion scheduled each week in order to make an effective contribution. Verbal expression is essential
to academic education, and while we will not embarrass any student, it is essential that you willingly
participate in classroom discussions.
Blackboard: Each week, I will communicate with you about the readings, suggesting ideas on which to
focus. You are responsible for monitoring the class Blackboard page and keeping up to date on the
suggestions, assignments and class notices. All class communication and assignments will be posted to the
Blackboard class page for History 488.
Attendance Policy: You are expected to commit to this class, as you would with any other important
activity. While some absences are expected, you should notify the instructor (in person or by email) before
the absence. Excessive unexcused absences (more than two) make it impossible to do well in this course,
and will result in substantial grade reductions.
Grades: While mastering the material and gaining knowledge of the ideas, people and events that shape
American legal history is the purpose of the class, grades will nonetheless be assigned as follows: (500
Total Points)
1 .Midterm Exam # 1: 100 Points
2. Midterm Exam #2: 100 Points
2. Final Exam: 100 points
Writing Flag Requirements and Expected Outcomes: [The class develops the students’ ability to
express their ideas clearly in written form through critical analysis papers]
3. [1] critical essay [15-20 pages] on a topic [of your choosing] related to a current constitutional
controversy. Dates for completing of the project will be established in the syllabus to include submission of
a thesis statement and source summary: 100 points
[No extension of the final paper deadline will be granted except in extraordinary
circumstances and only with approval of the Professor before the deadline.]
4. Class Discussion: 100 points
A=500-450
F=299-0
Total Point Breakdown
B=449-400
C=399-350
D=349-300
No make up exams will be offered except in the event of a documented medical or personal emergency.
Late exams will not be accepted without prior permission from the instructor. Special accommodations for
test taking should follow the student handbook guidelines, and you must notify the instructor as soon as
possible to advise him of any special conditions. Failure to complete any required assignment or exam
will result in an “F” for the course.
Honor Policy: You are expected to follow the honor policy as set out in the student handbook. Follow all
the plagiarism policies in the handbook for all papers. When in doubt about any policy, contact the
instructor for advice.
Class Webpage: Constitutional sources such as the Oyez Project will be linked to the class webpage.
Occasionally, you will be assigned the task of using sources on the webpage to supplement your class
work. For the most part, the webpage is intended to offer additional sources and material to allow you to
take full advantage of the vast amount of constitutional history available to students of the US constitution.
Lecture Schedule &Readings and Assignments
Assignments
(MOL)Text
(PH)Text
pp. 1-93
Intro, 1-82
Exams/Paper
[pages]
Monday/Wednesday/Friday
I. Origins of American Constitutionalism
Week 1 8/29: Introduction to Class
8/31: English Antecedents and the
Early Colonial Period
9/2: Problems of Confederation
II. Creating a Constitution and Founding the Federal System
Week 2: 9/5: No Class- Labor Day
9/7: Divided Power in the Federal System
9/9: Judicial Power and the Counter-majoritarian
Dilemma
93-146
83-154
III. Building a Nation: Judicial Power in the Early National Period: 1789-1815
Week 3: 9/12: The Supreme Court (Gently) Flexes its
Muscle
Chisholm v Georgia (1793)
Marbury v Madison (1803)
Fletcher v. Peck (1810)
147-164
Chaps 8, 9
9/14: The Marshall Court: National Power and
Economic Development
181-228
Martin v. Hunters Lessee (1816)
McCulloch v. Maryland (1819)
Trustees of Dartmouth College v. Woodward (1819)
Cohens v. Virginia (1821)
Gibbons v. Ogden (1824)
Cherokee Nation v Georgia (1831)
Barron v. Baltimore (1833)
9/16: The Taney Court and Economic Change
320-336
Charles River Bridge Case (1837)
Swift v Tyson (1842)
Chaps 10.11
[By September 16,
students will have met
with the Professor and
chosen a topic for their
critical paper.]
IV. Slavery and the Constitutional Failure
Week 4 9/19:
9/21:
The Taney Court and the Slavery Debate
337-365
Deferred
The Antelope (1825)
The Amistad (1839) URL
Prigg v. Pennsylvania (1842)
Westward Expansion and the Wilmot
Proviso: Slavery Ascendant
Dred Scott v Sanford (1856)
Abelman v. Booth (1858)
Chap 12
366-400
Civil War and the Failure of the First
Constitution
401-429
Ex Parte Merryman (1861)
Ex Parte Milligan (1866)
Thesis Statements
September 23, In Class
Chap 13, 14
9/23:
Chap 15
Deadline for Paper
V. Reconstructing the Second Revolution and American Apartheid
Week 5 9/26:
9/28:
9/30:
Reconstruction and the Nature of
Reunion
The 13th Amendment (1865)
Texas v. White (1866)
429-450
Freedman Civil Rights: White Resistance
and the Enthronement of Jim Crow
451-498
The 14th and 15th Amendments (1865)
The Slaughterhouse Cases (1873)
US v Cruickshank (1874)
The Civil Rights Cases (1883)
Yick Wo v. Hopkins (1886)
Jim Crow and the “Nature of Things”
Minor v. Happersett (1885)
Plessy v. Ferguson (1986)
Chap 16, 17, 18
Midterm #1 Handed Out
in Class
VI. Laissez Faire Economics and Classical Constitutionalism in the Gilded Age: 1877-1914
Week 6 10/3:
Midterm #1 Completed in Class
10/5:
10/7:
Classical Legal Thought, Substantive Due
Process and Freedom of Contract
500-520
Chap 19
Munn v Illinois (1887)
Mugler v. Kansas (1887)
Laissez Faire Economic
Constitutionalism v. the Police Power 521-544
Chicago, Milwaukee & St. Paul Railway v. Minnesota (1890)
US v. EC Knight (1895)
Pollock v. Farmers Loan and Trust (1895)
In Re Debs (1895)
VII. Progressivism Protections for Workers and the Rise of Constitutional Realism
Week 7 10/10:
10/12:
Legislative Power to Protect
Workers
572-643
Allgeyer v. Louisiana (1897)
Holden v Hardy (1898)
Lochner v. New York (1905)
Chap 20
The Rise of Realist Thought
624-643
Muller v. Oregon (1908)
Adkins v. Children’s Hospital (1923)
Village of Euclid v. Ambler Realty (1923)
Buck v. Bell (1927)
**Fall Break, October 14-16, 2005***
VIII. World War I and the Red Scare: Suppressing Free Speech and Association in Wartime
Week 8 10/17:
The Sedition Act and Free Speech
Schenck v. US (1919)
Abrams v. US (1919)
598-623
10/19:
Post WWI Review of Repression 644-662
In Re Gitlow v The People of NY (1925)
Whitney v. California (1925)
Near v. Minnesota (1931)
De Jonge v. Oregon (1937)
Herndon v. Lowry (1937)
10/21:
The Supreme Court and Civil Liberties
During Wartime: Some Comments and
Contemporary Conundrums
Chap 21
Chap 22
IX. The Depression and the New Deal: The Roosevelt Court and the Second Reconstruction
Week 9 10/24: Economic Crisis and the Demise of
Classical Legalism
10/26:
663-713
Chap 23
Home Building & Loan Association v. Blaisdell (1934)
Nebbia v. New York (1934)
Schecter Poultry Corp v. US (1935)
The Carter Coal Case (1936)
US v. Butler (1936)
10/28:
Roosevelt Court Packing and
Commerce Clause Nationalism
Supreme
Morehead v. NY, Tipaldo (1936)
West Coast Hotel v. Parrish (1937)
NLRB v. Jones & Laughlin Steel Co. (1937)
Erie Railroad Co. v. Thompkins (1938)
Wickard v. Filburn (1942)
Chap 24, 25
X. Civil Liberties and Democratic Ideas: Protecting Minorities with Process Jurisprudence
Week 10 1/31: The Carolene Products Doctrine and
Protecting Religious Minorities
773-751
Chap 11
US v. Carolene Products Co. (1938)
Minersville School Board v. Gobitis (1940)
West Virginia Board of Education v. Barnette (1943)
11/2: Minorities During Hot and
752-772
Cold Wartime: Internment
and Anti-Communism
Korematsu v. US (1944)
Ex Parte Endo (1944)
Dennis v. US (1951)
Brandenburg v. Ohio (1969)
pp. 379-382
11/4: No Class: Take Home Midterm #2 Posted To Blackboard: Due November 7, 2005
[Paper
bibliography of sources
due November
7, 2005]
XI. The Struggle for Civil Rights: The Supreme Court, Federalism and the Evolving Constitution
Week 11 11/7: The NAACP Strategy for Ending
Jim Crow
773-777
Chap 28
State of Missouri ex rel. Gaines v. Canada (1938)
Sipuel v. Oklahoma Board of Regents (1948)
Shelley v. Kraemer (1948)
Sweatt v. Painter (1950)
McLaurin v. Oklahoma (1950)
11/9: Brown and Brown v. Board: CJ Warren
and the Limits of Constitutional
Reform
778-792
Chap 29, 30
Brown v. Board of Education I & II (1954, 1955)
11/11: No Class, Veterans Day Vacation
Week 12 11/14: The Supreme Court as Political
Branch: Civil and Voting Rights 793-816, 846-851
Cooper v. Aaron 1958)
Heart of Atlanta Motel v. US (1964)
Baker v. Carr (1962)
Reynolds v. Sims (1964)
Chap 31
XII. Religion, Speech and Protecting the Rights of Criminals Through the Incorporation Doctrine:
1955-1975
11/16:`The Wall of Separation:
Freedom of and Freedom
From Religion
817-846
Chap 31
Everson v. Board of Education (1947)
Engel v. Vitale (1962)
11/18: The Bill of Rights for the Worst
and the Best Among Us
858-866
Mapp v. Ohio (1961)
Gideon v. Wainwright (1963)
Miranda v. Arizona (1966)
In Re Gault (1967)
US v. O’Brien (1968)
Week 13 11/22: Dissent, Free Press and the Nixon Presidency:
The Court, the Presidency
and Watergate
867-894
NY Times v. Sullivan (1964)
Tinker v. Des Moines (1969)
US v. Nixon (1974)
** Thanksgiving Break, November 23-27, 2005**
XIII. Equal Protection, the Penumbra of Personal Autonomy and Affirmative Action: The Supreme
Court and Judicial Supremacy
Week 14 11/29: Procreation as a Fundamental
Right and Gender
Classification
907-917
Skinner v. Oklahoma (1942)
Griswold v. Connecticut (1965)
Loving v. Virginia (1967)
Reed v. Reed (1971)
Roe v. Wade (1973)
Chap 32, 33
[Critical Paper Draft Due in
Class, November 29,
2005]
11/30: Privacy, Defining Life and the Post-Roe
Debate
Chap 34
Webster v. Reproductive Health Services (1989)
Cruzan v. Cruzan (1990)
Planned Parenthood v. Casey (1992)
Carhart v. Stenberg (2000)
Bowers v. Hardwick (1986)
Lawrence v. Texas (2003)
12/2: “Fixing the Race Problem:” Affirmative
Action as Judicial Remedy
903-918
Regents v. Bakke (1978)
City of Richmond v. J A Croson Co. (1989)
Grutter v. Bollinger, Gratz v Bollinger (2003)
San Antonio School District v. Rodriguez (1973)
Chap 34
XIV. The New Federalism: Debating Judicial Activism in the Age of Terror
Week 15 12/5: The Burger and Rehnquist
Retrenchments
919-974
Cohen v. California (1971)
Critiques Due]
Branzberg v. Hayes (1972)
Miller v. California 1973)
Schneckloth v. Bustamonte (1973)
US v. Leon (1984)
[Student
Buckley v. Valeo (1974)
12/7: Retrenchment Continued and the
New Federalism on the
“O’Connor” Court
975-997
Furman v. Georgia (1972)
Atkins v. Virginia (2002)
Printz v.US (1996)
Hamdi v. Rumsfeld (2004)
12/9: The Supreme Court and the Constitution
Paper Due]
in the 21st Century
Final Exam Week: December 12-15, 2005 (Final TBA)
[Final