READING AND WRITING ASSIGNMENTS FOR HST 361

NOTE: Even if unassigned, you should read the prefaces and introductions to all books and chapters.

January 9--INTRODUCTION TO U.S. LEGAL & CONSTITUTIONAL HISTORY

TOPIC ONE: WHAT IS "SOCIAL JUSTICE" AND WHAT ROLE DOES "CONSTITUTIONALISM" & LAW HAVE IN DEFINING RIGHTS & JUSTICE?

Read Rescher, "The Canons of Distributive Justice" (web syllabus)

Questions to Think About: What are the various theories of social justice? How would you define "social justice"? What criteria would you use to measure whether social justice has been achieved?

Read Hall, Chapter 1, Essay by Hartog

Questions to Think About: What is "constitutionalism"? What "rights" come with "citizenship"? Does America's constitutional system ensure or even promote "social justice"?

Read Benedict, Introduction (pp xix-xxii)

TOPIC TWO: HOW COURTS INTERPRET THE CONSTITUTION?

Read Hall, Chapter 12, Documents (pp. 549-67–writings of Meese, Brennan, and Marshall)

Read Hall, Chapter 12, Essay by Levy

Questions to Think About: One of the major questions in legal jurisprudence today is what is the proper basis upon which judges should interpret the Constitution. What criteria should we apply to determine whether judges are performing their task of constitutional interpretation in an appropriate manner? What are the appropriate or acceptable sources of constitutional meaning; that is, where should judges look in determining the meaning of the Constitution?

Almost everyone who has ever considered these questions has started with the assumption that a necessary or inherent part of constitutional interpretation is the constitutional text. If attention to the constitutional text is a sine-qua-non of constitutional interpretation, and if the words which make up the text have meaning, it could be argued that historical study is irrelevant or superfluous to constitutional interpretation (and therefore you are wasting your time taking this course!!) Put differently, the words of which the Constitution consists should be taken to "speak for themselves." In this view, the interpreter's goal would be to discern the "plain meaning" of the words. Is that an acceptable or sensible approach to take in interpreting the Constitution? If not, why not?

Be prepared to discuss:

1. How do Meese, Brennan, and Marshall believe judges should interpret the Constitution? Whose view is most sensible? Most persuasive? Most "just"? What problems do each pose? What limitations are there to each one's theory? If you were a judge, which approach to constitutional interpretation would you be inclined to adopt? Why? Whose interpretation would you say was "conservative"? Why? How does each position reflect the author's "time" and "politics"?

2. Meese argues that the source of distortion of constitutional interpretation is "the misuse of history." How does he think history has been "misused" or abused? Do you agree? What role, if any, would/should history play in constitutional interpretation?

Assignments:

1. threaded discussion - see quickplace (quickplace.udayton.edu/hst_361) (If you can’t post, email this assignment)

2. informal writing - jot down all the “rights” you believe are essential for “freedom”

- jot down all the “rights” you believe come with “citizenship”

Make two copies of this. (The assignment MAY be handwritten) You will turn one in at the start of class. You will use the other to help you contribute to class discussion

January 14 & 16 --THE CONSTITUTION AND RECONSTRUCTION

Read Benedict, Chapter 10

Read the 13^th, 14^th, and 15^th Amendments to the Constitution (see Appendix in Hall)

Read Mississippi Black Codes (web syllabus)

Read Hall, vol. 1 (on reserve) documents: Civil Rights Act of 1866; Andrew Johnson's Veto of the Civil Rights Act; Congress Debates the Fourteenth Amendment

Read in Hall, vol. I, (on reserve), essays by Kaczorowski and Benedict (which will help you think about the original intent of the framers of the Fourteenth Amendment–applicable here and for our discussion of the Slaughterhouse Cases (on January 18)

[Order of discussion: 13^th Amendment; Black Codes; Civil Rights Act and Johnson's Veto; 14^th Amendment and Congress' debates on the amendment–discussion of Kaczorowski & Benedict--; 15^th Amendment.]

Questions to Think About:

For the 13^th Amendment: What does it mean not to be a slave? Why did Congress add Section 2--the "enforcement clause"?

For the Mississippi Black Codes: What "rights" were conferred on Negroes? What restrictions were placed on them? Where they "free"?

For the Civil Rights Act of 1866: What rights were guaranteed to citizens? Are they sufficient? Compare this act with the Black Codes. Are there any similarities? How does the Act differ from the Codes?

For Andrew Johnson's Veto of the Civil Rights Act: What were Johnson's arguments? What were his assumptions about federalism? If his views prevailed, would former slaves have any chance to have protection and equal opportunities?

For the Fourteenth Amendment and the Debates: What are the three main clauses in Section 1 of the 14^th Amendment? Are the words of that section narrow or broad in scope? Do the words provide any clues as to the "intentions" of the framers? What rights are protected here? What are the implications of section 5? What are the similarities and differences between the Thirteenth Amendment, the Fourteenth Amendment, and the Civil Rights Act? Do the congressional debates help you determine the meaning and scope of the Fourteenth Amendment? In interpreting that amendment, should justices rely solely on the "text" of the Amendment or should they rely on the debates as well? Why did you conclude as you did?

For the 15th Amendment: Does this amendment guarantee blacks the right to vote?

January 21 - RACE RELATIONS: RECONSTRUCTION AND ITS AFTERMATH

Read in Hall, vol. 1 (on reserve), The Slaughterhouse Cases

Read in Hall, vol. II, Chapter 2, The Slaughter-House Cases, p. 27, first paragraph, which comes after the second to last paragraph of the vol. I excerpt on p. 547 (paragraph starting "The regulation of the place and manner..."); p. 27 beginning with second paragraph through the first two lines of page 29, which comes after the first full paragraph of p. 549 in the vol I excerpt (the paragraph beginning "Twelve articles of amendment . . . "); last five lines on page 31, which should be added at the end of the Fields dissent in vol. I. (p. 559) after “. . . rights of man, is violated.”

WRITING ASSIGNMENT #1 (mandatory) - DUE January 21

Brief the Slaughterhouse Cases as follows:

(1) relevant facts of the case;

(2) (a) constitutional issue #1; (b) Court’s holding on issue #1; (c) majority’s reasoning in support of holding on issue #1; (d) dissents reasoning in opposition to majority’s opinion on issue #1; (e) based on your understanding of the "intentions" of the framers of the Fourteenth Amendment, whose arguments--the Court's minority or majority--do you find to be more persuasive and why? (In answering why, consider, among other factors, how convincing their use of history was.)

(3) (a) constitutional issue #2; (b) Court’s holding on issue #2; (c) majority’s reasoning in support of holding on issue #2; (d) dissents reasoning in opposition to majority’s opinion on issue #2; (e) based on your understanding of the "intentions" of the framers of the Fourteenth Amendment, whose arguments--the Court's minority or majority--do you find to be more persuasive and why? (In answering why, consider, among other factors, how convincing their use of history was.)

(4) (a) constitutional issue #3; (b) Court’s holding on issue #3; (c) majority’s reasoning in support of holding on issue #3; (d) dissents reasoning in opposition to majority’s opinion on issue #2; (e) based on your understanding of the "intentions" of the framers of the Fourteenth Amendment, whose arguments--the Court's minority or majority--do you find to be more persuasive and why? (In answering why, consider, among other factors, how convincing their use of history was.)

January 23 – no class (this is a University Monday)

January 28 - CONCLUSION of RECONSTRUCTION & ITS AFTERMATH

Read in Hall, vol. I (on reserve), The Civil Rights Cases

Read in Hall, vol II, Chapter 8, Plessy v. Ferguson (pp. 358-63)

Questions to Think About: For each case--What is the basis for the majority's opinion and the dissent? Who do you think employs the proper constitutional interpretation based on the "original intent" of the Fourteenth Amendment? based on moral reasoning? based on "practical" grounds? Which is the "correct" approach?

January 30--ECONOMIC CONTROL AND THE REVOLUTION IN DUE PROCESS

Read Benedict, Chapter 11

Read Hall, Chapter 2, Documents: Munn v. Illinois, United States v. E. C. Knight, Pollock v. Farmers' Loan and Trust, In Re Debs, The People's Party Platform

Read Hall, Chapter 3 Document: Tiedeman on Limitations of Police Power

Read Sherman Anti-Trust Act and Bryan's Cross of Gold Speech (web syllabus)

Questions to Think About for the Documents:

What is the scope of the state's police powers as Tiedeman defines them? How does Tiedeman define "liberty"? Is this the definition you thought about when we discussed what it meant to be free at the start of the course? Is this the definition you normally think of when someone says "liberty" to you today? Why do you suppose Tiedeman's definition is different? Do you think most late nineteenth century Americans defined "liberty" as Tiedeman did? How is Tiedeman's views reflected in the cases you read for today?

Regarding Munn, do you agree with the decision? Why or why not? Was the decision"just"?

Regarding the People’s party: What was the People's Party and Bryan trying to accomplish?

Regarding Pollock: do you think the majority or the dissent got it “right” and why?

Regarding anti-trust issues: Did the Sherman Anti-Trust Act help achieve Bryan’s and the People’s Party’s goals? Is the Sherman Act narrow or broad in scope? Exactly what is forbidden under it? What does it say about competition? Was the Court right in its interpretation of that Act in E.C. Knight or is Justice Harlan correct in claiming that the majority opinion "defeats the main object" of the Sherman Act?

Regarding In Re Debs, do you agree with the decision? Why or why not? Was the decision"just"?

Read Hall, Chapter 2, Essay by Paul - you might read this first to help put the readings in context.

Suggested Order of readings: Benedict text; Paul essay; Documents (Tiedeman, Munn, People's Party Platform, Bryan's speech, Pollock, Sherman Anti Trust Act, E. C. Knight, In Re Debs)

February 4--THE REVOLUTION IN DUE PROCESS OF LAW

Read Hall, Chapter 3 Documents: Ritchie, Allgeyer, Holden v Hardy, Lochner v. NY,

Read Hall, Chapter 2, Essay by Benedict

Benedict's article is interpretive, explaining historiographical developments. Benedict helps you understand how values change and how that is reflected in the type of history that is written. For Benedict, questions to think about: What is his thesis? How does he defend it? Do you agree with him and why?

Optional Reading: Hall, Chapter 3, Essay by Urofsky--provides good summary of the era and the cases if you wish more information and context

Questions to Think About:

How does the Court define "due process of law" in these cases? What is "liberty of contract"? What scope does the Court allow to state police powers in each case? If you see differences in the scope of police powers in different cases, why do you suppose the Court allowed certain actions some times and not at others? What is the Court's reasoning in each case? Do you see any consistency in legal reasoning in these cases? Do you find any "fixed" principles?

More Questions to Think About: What historical and other forces led to the revolution in due process?

What do you suppose were the political, social, and economic results of the revolution in due process? Do you believe the Court's interpretation of the due process clause was necessary for economic development? What do you suppose would have happened to America's development without this legal development?

Writing Assignment #2 - due February 4

According to the assigned cases for 2/4, how does the Court defines “due process of law” and “liberty of contract”? Is the Court consistent in all the cases or are there differences? Explain. Then evaluate the Court’s legal reasoning. Do you think that the court’s doctrines of “due process of law” and “liberty of contract,” as they are defined in these cases, are constitutionally sound? Defined your position. (Think about, in your analysis, whether you think the Court is being “judicially active,” is following original intent, or what? Why do you suppose the Court developed these doctrines? See “questions to think about” above, also.) Evaluate the doctrines and their political, social, and economic significance. (Feel free to use the essays by Benedict and Urofsky if relevant to your analysis.)

[Maximum page length: three typed, double-spaced pages]

February 6--THE REVOLUTION IN DUE PROCESS OF LAW--What happened to women?

Read Hall, vol. I (on reserve), Bradwell v. Illinois

Read Hall, Chapter 3, Documents: Review Ritchie v. The People (especially the last portion of the case dealing with rights for women). Read Gompers on Married Women; Bradeis and Goldmark on Women in Industry; Muller v. Oregon; Adkins v. Children's Hospital.

Read Hall, Chapter 3, essay by Baer (pp. 118-29)

Questions to Think About: Justice Miller wrote the majority decision in both Slaughterhouse and Bradwell. In Slaughterhouse, Bradley, Field, and Swayne dissented. They concurred in Bradwell. Why? Is Miller's reasoning consistent? Are the dissenting/concurring justices consistent? If so, describe. If not, what are the areas of inconsistency and why do you think the justices were inconsistent in these areas? What is the role of the Court's view of women in Bradwell, Ritchie, Muller, and Adkins? How do the dissenters in Slaughterhouse view freedom of contract and the right to free employment when it comes to women in Bradwell? Do they attempt to explain their different views? Which case(s) represents a better view of "justice" and why?

After reading Baer's article, what is the difference between Brandeis' appeal (in his brief) and the reasons the Court gave for its decision in Mueller? What impact did this have on women's "rights"? Isn't the Oregon law the Court upheld an example of "class legislation" that conservatives supposedly opposed? How do our views of women's rights and appropriate legislation regarding gender differ today from the early twentieth century? Why the differences?

February 11-- THE LEGAL PROFESSION, NEW EDUCATIONAL CHALLENGES, AND NEW

APPROACHES TO CONSTITUTIONAL INTERPRETATION

Read web syllabus, [Thomas Shearman?], The Judiciary of New York

February 13 -- THE PROGRESSIVE ERA

Read Benedict, Chapter 12

Read Hall, Chapter 3 Documents: Pound on Liberty of Contract

Read (web syllabus): Northern Securities v. U.S.; Standard Oil Co. v. U.S.; American Tobacco v. U.S.; McCray v. U.S.; Champion v. Ames; Hammer v. Dagenhart

Questions to Think About:

Regarding Northern Securities: Do you agree with Justice Holmes or the majority? Why? What is the real issue involved in this case? One historian has claimed that Harlan's "literalist interpretation" of the Sherman Act "seemed to put almost any business cooperation in danger of prosecution." Do you agree? Holmes and Harlan are both considered advocates of the doctrine of judicial restraint. Why do they differ on the Northern Securities case? Which is the judicial restraint position or are both?

Regarding Standard Oil: What is the "rule of reason"? Compare the majority decision with Justice Harlan's opinion. Considering that Justice Harlan joined the Court in holding the Sherman Act applicable to Standard Oil, why is he so disturbed about the majority's reasoning? Is he correct in claiming that the use of the "rule of reason" by the Court amounts to "usurpation by the judicial branch of the Government of the functions of the legislative department"? Is the "rule of reason" any different from substantive due process?

Regarding American Tobacco: Why did the Court bust up Standard Oil and not American Tobacco. Is this judicial activism?

Regarding McCray, Champion, and Hammer, compare the reasoning and rulings in these three cases. How did the Court defend its supposed consistency. Are you convinced?

February 18 – First Midterm Exam

February 20 -- THE PROGRESSIVE ERA (continued)

Read (on reserve) Friedman & Lasdinsky, "Social Change and the Law of Industrial Accidents"

Questions to Think About: Why did worker's compensation develop when it did and who benefitted most from its development? Do you agree with Friedman and Ladinsky's assessment of worker's compensation? If so, what data do you find most compelling? If not, what is wrong with their argument?

February 25--WORLD WAR I

Read Hall, Chapter 4, documents: Espionage Act, Schenck v. U.S.; "Workers Wake Up" both versions; Abrams v. U.S.; Chafee on Freedom of Speech in Wartime.

Questions to Think About:

For the Espionage Act: what is outlawed? Is it constitutional, or does the act unconstitutionally abridge freedom of speech?

For Schenck: what did Schenck do? Did that present a clear and present danger? On page 151, Holmes, dissenting in Abrams, said that the government must prove intent, and that to do so it must prove that the aim of the deed was to produce the prohibited consequences. Did the government, in Schenck prove intent to obstruct recruiting?

For Abrams, after reading the case and both versions of “Workers Wake Up” do you think Abrams’ actions presented a clear and present danger? Is what he wrote protected speech? Should it be? Does Holmes try to change his clear and present danger test in Abrams? If so, how?

Writing Assignment #3 - due February 25

After thinking about the questions to think about (above), in no more than three typed pages, first describe the positions of Chafee, Holmes (in Schenck and then in his Abrams dissent), and the majority in Abrams. Then compare these positions. (You might consider: Which position is the least restrictive of free speech? Why? Which standard do you find most appropriate given the First Amendment and the ideology of democracy? Which standard gives the courts the most discretion? The least discretion?) Finally, discuss whose position you believe offers the best interpretation of the First Amendment and why? (Be sure to refer to your view of jurisprudence based, at least in part, on the readings of Brennan, Meese, and Marshall and our discussions early in the term.)

February 27 - THE 1920S

Read Benedict, Chapter 13

Read web syllabus: Bailey v. Drexel Furniture; Justice Brandeis' dissent in New State Ice

Read, Hall, Chapter 4, documents: Gitlow v. NY; Near v. Minnesota

Questions to Think About: Compare the Court's view of law and approach to deciding cases in Bailey and Brandeis' dissent in New State Ice. What are the values of each? How does Brandeis' approach reflect "sociological jurisprudence"?

Regarding Gitlow and Near, how is free speech and free press fairing in the 1920s? Can you think of any reason why, in what is considered a "conservative" era, there seems to be a growing concern for protecting individual rights--or at least the right of free speech and a free press?

March 4 -- THE NEW DEAL: A CONSTITUTIONAL REVOLUTION

Read Benedict, Chapter 14

Read Hall, Chapter 5 Documents Schechter v. U.S.; Pearson on "Nine Old Men"

Read web syllabus: U.S. v. Butler, Carter v. Carter Coal

Questions to Think About:

In Schechter, compare Justice Hughes's philosophy about government experimentation in with Brandeis's in New State Ice. Is Pearson’s criticism of the Schechter decision justified? What do you think of Roosevelt’s views on how the interstate commerce clause should be interpreted? (See p. 196)

Regarding Butler and Carter, how did the Court defend its rulings? Was the Court being reasonable in its response to the Depression? Which makes more sense–the majority or the dissent. Why? Compare Carter v. Carter Coal with E. C. Knight and subsequent antitrust cases. How can the Court go back to Knight? In Carter, the Court acknowledges that Congress wrote that the two sections of the act should stand alone and be treated separately by the Court, but the Court ignores Congress's plain words. On what basis? Do you agree or disagree with the Court's reasoning and why? Is Pearson right about the "nine old men"?

March 6 -- NEW DEAL (continued)

Read Hall, Chapter 5, Documents: Judiciary Reform Act; Roosevelt Advocates Judicial Reform; Hughes Defends the Court's Performance

Read Hall, Chapter 5 Essays by Leuchtenburg and Nelson

Questions to Think About: What was FDR’s plan? What do you think of it? Do you agree with Leuchtenburg, that from the perspective of the times, FDR’s plan was a logical–perhaps the only possible–response,. Or do you agree with Nelson that FDR’s leadership was flawed? Should FDR have brought up the issue of the Court during the 1936 presidential campaign? Would it have helped his cause? Did FDR disguise the purpose of his plan? If so, why? What would you have done in FDR’s shoes?

March 11 - NEW DEAL (continued)

Read Benedict, Chapter 15

Read Hall, Chapter 5 Documents West Coast Hotel v. Parrish

Read web syllabus: The NLRA; NLRB v. Jones & Laughlin Steel; U.S. v. Darby; Wickard v. Filburn

Questions to Think About: What was the "constitutional revolution" of 1937 and beyond? What did the Court do? What doctrine(s) changed? What happened to substantive due process? What happened to liberty of contract? Is the Court now exercising "judicial restraint"? How does the Court define the scope of the commerce clause? Specifically, how does the Court's reasoning in West Coast Hotel v. Parrish differ from earlier New Deal cases? Compare Hughes’ position on commerce in NLRB v. Jones & Laughlin Steel with his opinion in Schechter Poultry. Is the Court's reasoning in Darby and Wickard sound constitutionally? economically? Can it be argued that Wickard is the death blow to state power?

Writing Assignment No. 4: due March 11

In no more than three pages, first describe the “constitutional revolution.” Then discuss whether you believe the Court was correct or not in its new interpretation. On what basis did you arrive at your conclusion? (What is the legitimate basis of jurisprudence and constitutional interpretation?) In other words, do you agree with the court’s decisions in West Coast Hotel, NLRB v. Jones & Laughlin, Darby Lumber, and Wickard v. Filburn compared to the decisions before them (going all the way back to Smyth v. Ames, Lochner, etc.) Why? Take a position, stick your neck out, and defend the position. (Refer back to your view of jurisprudence based, at least in part, on the readings of Brennan, Meese, and Marshall and our discussions throughout the term.)

March 13 -- -WAR, EXECUTIVE PREROGATIVES, AND CIVIL LIBERTIES

Read web syllabus: Korematsu v. U.S.

Questions to Think About: Can you defend the court's decision in Korematsu. Can such an action happened again? Would it be supported by the Supreme Court?

March 18 and March 20 – spring break

March 25 – FREEDOM OF SPEECH IN THE COLD WAR

Read Hall, Chapter 6, Documents: The Alien Registration (Smith) Act; Senate ... hearings on the Smith Act; Dennis v. U.S.; Roche Argues That We’ve Never Had More Freedom; Yates v. U.S.; Brandenburg v. Ohio

Read Hall, Chapter 6, Essays by Belknap and Berns

Questions to Think About:

Regarding the Smith Act and the Senate debates: what are the provisions of the Act? Do you think the Act violates the First Amendment? Where should Congress draw the line between treason and advocacy? How free should speech be in a democracy? On page 248, Senator Connally asks if Miss Bodkin believes “that the absolute right of the press . . . be used as an instrumentality for overthrowing the government.” Bodkin replies “no.” How would you have answered? Where would you draw the line?

Regarding the Roche document--what is his thesis? What is he advocating? What would be his attitude toward Dennis and other political events of the 1950s dealing with the “communist threat”like security programs?

Regarding Dennis, what “rule” or “standard” does the Court adopt for suppressing speech? Is it the same as Holmes’ clear and present danger test as he applied it in Abrams, Gitlow, and Whitney? How would Holmes and Brandies have ruled in Dennis? What is Douglas’ criticism in dissent? What is his “rule” or standard? Do you agree with the Court’s standard or do you agree with Douglas or do you have a different view altogether?

Regarding Yates, did the Court merely apply the rule stated in Dennis of did it change it? If it changed the rule or standard, how did it do so and what was the new rule or standard?

Does Brandenburg merely restate the standard established in Yates or does it proclaim yet another rule or stand? If another, what is it? Was the Ohio law declared unconstitutional in Brandenburg the same or different from the Smith Act? If different, how?

Comparing Dennis, Yates, and Brandenburg, which standard do you most agree with and why?

Regarding the essays: delineate the thesis of each essay. What does each tell you about how the courts and judges make decisions? What does each tell you about why things change? Regarding Berns’ essay, do you agree that free speech is not a right, but a privilege? What do you think of his position on free speech and the notion of virtue?

March 27 – Second Midterm Examination

April 1 & April 3 - COLD WAR AND IMPERIAL PRESIDENCY

Read Benedict, Chapter 17

Read Hall, Chapter 7 -- ALL documents and essays

Questions to Think About:

Was Korea a “legal” “war” or should there have been a congressional declaration of war?

Under what constitutional provisions did the Court, in Youngstown Sheet and Tube, determine that Truman had overreached his authority? Do you think the Court would have reached the same conclusion if this had been World War II? Should the "balance of powers" as written in the Constitution be maintained?

Was the Gulf of Tonkin Resolution a de facto declaration of war, especially when taken in conjunction with continuing authorizations of money by Congress?

Regarding the Bickel essay, did Congress, de facto, approve the Vietnam War in other ways? Could it have been stopped?

How limiting is the War Powers Act? Is it constitutional? Why or why not? Would the War Powers Act have prevented the escalation of the Vietnam War? Why do you suppose the President is ordered to submit his report, in addition to the Speaker of the House, to the President pro tempore of the Senate and not to the President of the Senate?

What were the issues in U.S. v. Nixon? Do you agree with the Court? How could some argue that the decision, in fact, expanded presidential power?

After reading the document by Erwin and the essays by Schlesinger and Kurland, what was “Watergate”? Does what happened bother you? List all the unconstitutional things done. Do you think there is/was an "Imperial Presidency"? Is it the result of the particular person occupying the White House or are there systemic problems in our constitutional system? Can Congress stand up to the President? Should it? Should the "balance of powers" as presented in the Constitution be maintained? If so, how?

April 8 and 10 -CIVIL RIGHTS IN THE POST-WORLD WAR II WORLD

Read Benedict, Chapter 16

Read Hall, Chapter 8, documents and essays

Read web syllabus, Title II of the Civil Rights Act; Heart of Atlanta Motel v. U.S.

[Suggested order to reading: Brown I and II and The Southern Manifesto; The Civil Rights Act in Hall and Title II and Heart of Atlanta Motel on the web; Bakke and the Wilkinson essay; Fullilove and then the Sowell document which you should compare with Wright’s essay.]

Questions to Think About: Can Brown be justified based on the Constitution? Does/should original intent matter? Do we know what the original intent of the 14th Amendment was? How legitimate was the southern view as stated in "The Southern Manifesto"? Does/should social justice matter when adjudicating cases? Has your opinion/jurisprudence changed since you read Slaughterhouse?

What are the provisions of the Civil Rights Act of 1964? Under what constitutional authority did Congress enact it? How does the 1964 Act differ from the 1866 Act?

Evaluate the Court's jurisprudence in Heart of Atlanta. Was the Court reflecting the values of society? Does the decision reflect the original intent of the Constitution? What was the intent of the commerce clause? Compare the Court's interpretation of the commerce clause here with the earlier New Deal cases (NLRB v. Jones and U. S. v. Darby, for example). Can the Civil Rights Act of 1964 be legitimately based on the commerce clause? Why not the Fourteenth Amendment?

Does Bakke and Fullilove logicially follow Brown? Are either constitutionally justified? If so, under what constitutional provision(s)? What is the "fatal flaw" of the Davis program in Bakke? Bakke talks of the 14th Amendment as emphasizing the rights of the individual rather than of the individual as part of a group. Is the Court right in interpreting the 14th Amendment in this way? Is this still the attitude of the courts and society today? How does the Court reconcile Fullilove with Bakke? Who is right--Sowell or Wright? Is affirmative action a “fallacy” or a moral imperative?

See writing assignment #5 on the next page - due April 8

WRITING ASSIGNMENT #5 - Due April 8

In no more than two pages, justify or attack either Bakke or Fullilove based on your interpretation of the Constitution, the original intent of the Fourteenth Amendment, and the jurisprudence you have developed in this course. (In writing this essay, you might want to consider such questions as: Does/should original intent matter? Do we know what the original intent of the 14th Amendment was? Is it relevant to civil rights and affirmative action decisions? What about the intent of the commerce clause and the legitimacy of the Civil Rights Act of 1964 upon which these decisions are also based? In addition to using the case you are analyzing, you should use other relevant material [e.g., the essays assigned with these documents, previous documents like the debates on the Fourteenth Amendment, previous essays and cases dealing with rights, commerce, and the like.)

April 15--WOMEN AND EQUAL RIGHTS

Read Benedict, Chapter 18 and 19

Read Hall, Chapter 9, documents: Frontiero v. Richardson, the Equal Rights Amendment and Schlafly, Cook, and Falwell’s debate over it; Roe v. Wade, and Webster v. Reproductive Health Services

Read Hall, Chapter 9, essays by Ely and Law.

Read web syllabus Griswold v. Connecticut

Questions to Think About:

Regarding Griswold, Roe, and Webster, are these decisions "creative jurisprudence" or "unwarranted judicial activism"? Justice Rehnquist argued on page 434 that the "test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. . . . The Due Process Clause of the 14th Amendment undoubtedly does place a limit, albeit a broad one, on legislative power . . . ." Do you agree? Is this the same judicial restraint argument made by Holmes and Brandeis several decades earlier? Is this the same argument the majority made in Slaughterhouse? Did you agree with the Slaughterhouse majority? With Brandeis and Holmes? Do you agree with Rehnquist? Is this the same standard the Court should use in segregation cases? If so, was Plessy v. Ferguson rightly decided? Was Brown correct? Are you being consistent?

Regarding the other readings, what did the Equal Rights Amendment call for? What were the arguments for and against it? Who do you think is right and why? Should women be “equal”? How “equal” is “equal”? Does it mean equal pay for equal work? What is “equal work”?

April 17--THE CONSTITUTIONALITY of the DEATH PENALTY

Read Hall, Chapter 11, Documents Furman v Georgia, Gregg v. Georgia, and McCleskey v. Kemp only

Optional reading: Hall, Chapter 11, Essays by Berns, Black and Baldus.

Questions to Think About:

What constitutional provisions are at issue here in Furman, Gregg, and McCleskey? What is the constitutional basis for the decisions? What sources and other jurisprudential devices did each justice use to defend his/her position? On page 515, Justice Marshall called for the courts to use "popular sentiments" as a basis for their judgments. On the next page, he argued that “even if capital punishment is not excessive, it nonetheless violates the Eighth Amendment because it is morally unacceptable to the people of the United States at this time in their history? Do you agree with Marshall’s assessment? No matter whether you agree or not, is this a viable jurisprudence? How does this approach differ from "sociological jurisprudence"? Which decisions do you agree with? disagree with? why? Are you being any more consistent than the Court?

On page 513, Justice Stewart wrote: "When people begin to believe the organized society is unwilling or unable to impose upon criminal offenders the punishment they 'deserve,' then there are sown the seeds of anarchy--of self-help, vigilante justice, and lynch law." Do you agree? Is this the crux of the problems society faces today?

Overall, based on the documents and essays, do you believe the death penalty per se is constitutional or unconstitutional? If you do not believe that the death penalty is per se unconstitutional, is some forms of it unconstitutional as cruel, unusual, or immoral? Do you believe morality should play a role in this question? What should be the criteria judges use to determine death penalty cases?

WRITING ASSIGNMENT #6 - due April 17

In no more than three typed, double-spaced pages discuss whether you believe the death penalty is constitutional or unconstitutional and why. In you analysis, you must drawn on the court’s reasoning or dissents in Furman, Gregg, and McCleskey as well as the articles. You should use the reasoning you agree with to support your arguments and refute the reasoning you disagree with, explaining why those who hold a view counter to yours are mistaken. Feel free, in addition to using the assigned material, to draw on other materials you have read. (But if you do so, be sure to footnote.)

April 22 and 24--THE REBIRTH OF STATES' RIGHTS?

Read web syllabus, U.S. v. Lopez

Questions to Think About: What is the issue for the majority? For the dissent?

What powers are the states “competent” to handle? Should the federal government handle all other powers? How related to “interstate commerce” do you think the activity should be? What about such legislation as the Fair Labor Standards Act, laws dealing with pollution, safety in the workplace, or violence against women?

Why does the majority believe the preservation of federalism is important? Do you agree?

Which side is exercising “judicial restraint”? How do you define “judicial restraint”?