Email: Roberta.Alexander@notes.udayton.edu

You will be reading approximately 50 pages or less for each class. This is not much. But you are expected not only to think about the material as you read it--and you are expected to read it before each class.

Four written assignments are due throughout the term. You have six to choose from. Assignment #2 is mandatory. For the rest, you can select from among the five. If you do more than four, I will drop the lowest grade(s). Any written assignment turned in late will be marked down 2 grade for every day it is late. The "late day" begins with the start of class on the day the assignment is due. Moreover, no written assignment covering material to be discussed in class will be accepted after the material has been covered in class. Students not handing in assignments by that time will simply receive a "0" for that assignment. There will be no exceptions to the AO@ policyBso plan ahead for computer breakdowns and other emergencies. Not being in class does not relieve you of this rule. (There is no rule against handing in an assignment early!) Assignments must be turned in at class; no email attached assignments will be accepted.

All formal written assignments must be typed and double-spaced, and free from spelling errors, typos, grammatical errors, or capitalization and punctuation errors. Papers with three or more of these mechanical errors will be lowered 2 a grade for each error over three. There will also be little tolerance for the use of passive voice Papers utilizing passive voice more than three times will also be lowered 2 grade for each passive voice over three. You can raise your grade back by rewriting (eliminating your errors) within a week of when the paper was returned to the class.

On most days when there is no formal written assignment due, we will have threaded discussions BEFORE class. The threaded discussions will be posted at quickplace.udayton.edu/hst_360 at least a week before the discussion is due. You MUST post at least one response to the topic by no later than 8 PM on the day BEFORE class. Instructions for the threaded discussions will be posted at the quickplace cite. Occasionally Abriefs@ will be assigned. This will be explained later.

READ: Hall, Chapter 2--Essay by Lutz B What is his thesis? What are the sources of constitutional development according to Lutz? Do you agree with him?

Paine ("Calls for a Break with England") - Questions: How is Paine different from the writers you read on Tuesday? What was the Acommon sense@ for Paine? Why was it common sensical for America to declare independence? If so, why?

WRITING ASSIGNMENT #1 DUE September 10 B For Bailyn, Kramnick, Maier, and Klein readings:

2. Critically evaluate that thesis. That is, cite at least two examples from lectures, text, or other documents (e.g., Paine's Common Sense, The Declaration of Independence, colonial protests, etc.) that would support the thesis and two examples that would call that thesis into question. Then write a concluding paragraph explaining why you agree or disagree with the author's thesis (or how you would modify it before you could agree with it).
3. After you have critically evaluated each of the four articles, write a paragraph or two (but not more than one page) in conclusion explaining what you think was the nature of the American Revolution. That is, was it more for home rule or who should rule at home.

OVERALL QUESTIONS TO THINK ABOUT from essays and Klein and other material:

Based on the essays in Hall in Chapters 2 and 3, what contributed to the ways the colonies developed politically and ideologically--philosophers like Locke and other Englishmen and Enlightenment thinkers, forces in America, economic jealousies in the colonies, or something else?

Why do you think the colonists revolted? Was it over rights? Which rights? Were there issues of "social justice" involved in the American Revolution?

Thursday, September 12 and Tuesday, September 17

LIFE AND POLITICS UNDER THE ARTICLES OF CONFEDERATION

READ: Benedict, Chapter 4

READ: Hall, Appendix, The Articles of Confederation

READ: Hall, Chapter 3--Documents "The Pennsylvania Constitution"; "The Massachusetts Bill of Rights"

READ: Web Syllabus - Virginia Declaration of Rights

READ: Hall, Chapter 4--Documents, "The Northwest Ordinance"

QUESTIONS TO THINK ABOUT:

What factors contributed, do you think, to the way Pennsylvania wrote its constitution?

What ideals and rights are embodied in the Virginia and Massachusetts Bills of Rights? How do they compare with the Declaration of Independence? our "Bill of Rights" in the Constitution? with each other?

Did the Articles of Confederation really create a "weak" government (as you have probably all been taught)? Look at the surprising amount of power states surrendered to the central government. What powers were granted? What powers did the states surrender? What provisions were made for executive and judicial functions? Who enforced the Articles of Confederation? Who is "sovereign" under the Articles? How is that represented structurally?

Thursday, September 19 1787 CONSTITUTION

READ: Hall, Appendix, Constitution of the United States

READ: Hall, Chapter 4--Documents: "Proposed Plans for the National Government"; "Debate over Establishing the Federal Legislature; Debate Over Slavery and Representation . . . ."

QUESTIONS TO THINK ABOUT REGARDING THE TEXT OF THE CONSTITUTION:

How does the Constitution differ from the Articles of Confederation? Who gains (what groups) by the Constitution as opposed to the Articles? How strong is the executive--on paper?

Article VI (the so-called supremacy clause) is thought of today as the source for federal over state power. What does it really say?

Who enforces the Constitution?

What is "federalism"? How is it implemented by the Constitution?

QUESTIONS TO THINK ABOUT REGARDING THE PHILADELPHIA CONVENTION

Describe the Virginia, New Jersey, and Hamilton plans. How different were they? How does each represent the different thinking of radicals, moderates, and conservatives from the revolutionary era?

What was the fight over the Congress all about? What interests favored which proposals?

Factual-type questions you should be able to answer:

Describe the strengths and weaknesses of the Articles of Confederation. Describe the hopes and fears of the delegates to the Convention. Why did they feel they needed a new Constitution? Describe the major issues debated and the major compromises reached. What property qualifications for voting are there in the Constitution? What provisions does the Constitution (as written in 1787 without amendments) contain for protecting human rights? What provisions does the Constitution (as written in 1787 without amendments) contain for assuring "democracy"?

WRITING ASSIGNMENT #2 - DUE SEPTEMBER 18 ****** MANDATORY ******

Identify the clauses of the Constitution where the following are found (there are often several applicable clauses) and how these clauses work to promote the Framers' goals:

Separation of powers and checks and balances (Explain how each contributes to this)Federalism (Explain how each contributes to this)Judicial Review Powers of Congress Powers of the President

There are three clauses dealing with slavery hidden in the Constitution. What are they?

Answer this major thought question: Some believe the Constitution expresses essential values and ideals of America. What ideas, values, principles, and/or ideals do you find in the Constitution? Where?

Describe who is "sovereign" in the Constitution--where do you find support for your answer?

Identify those features in the Constitution that might support the business elite more than the Acommon man@ (economic features and others)

Tuesday, September 24 RATIFICATION OF THE CONSTITUTION

READ: Hall, Chapter 5 documents: "Yates and Lansing Urge Against Ratification"; AAlbany Anti-Federal Committee Outlines Weaknesses . . . "; "George Mason's Objections," "Brutus Blasts the New Government"; AHenry and Marshall Debate . . . " ; AMadison on Representation and Sovereignty"

READ: Hall, Chapter 5-- essays by Dry (especially pp. 202-23; 211-19)

QUESTIONS TO THINK ABOUT:

• What were the major objections to the Constitution?
• What were the major arguments for the Constitution?
• To Madison, what is the purpose of government? of the Constitution? How does he view human nature? What is "justice" to Madison?
• Detail the major arguments of the Federalists and Anti-Federalists
• Delineate the major differences between the Federalists and the Anti-Federalists.

In no more than three typed, double-spaced pages, first, list and explain the major arguments the Federalists and Anti-Federalists gave in supporting and opposing the Constitution (using all the sources assigned). Next, list the major differences between the Federalists and the Anti-Federalists. Finally, in about a page, explain who you would have supported and why. In doing so, you will need to refute the arguments of the other side as well as marshal evidence for your side.

Thursday, September 26 MOTIVES BEHIND THE CONSTITUTIONB

DIFFERING INTERPRETATION OF THE CONSTITUTION

READ: Hall, Chapter 4--essays by Roche, McDonald, and Wood

REVIEW: Other essays previously assigned

Be prepared to state each author's thesis succinctly and give me two examples of how he proves that thesis.

After you have read & thought about these articles and the others we have read, what do you think motivated the Framers of the Constitution. That is, what do you see as their original intent.

Tuesday, October 1 THE BILL OF RIGHTS

READ: The first ten amendments to the Constitution

READ: Hall, Chapter 5--document "James Madison on the Bill of Rights"

Questions: Why did Madison propose a bill of rights?

In form, how different are today's Bill of Rights from what Madison proposed?

In substance, how different are the Bill of Rights, as adopted, different from what Madison proposed?

READ: Web Syllabus Documents: Madison, "Memorial and Remonstrance" ; "Virginia Statute for Religious Freedom"

QUESTIONS TO THINK ABOUT:

What values do the Bill of Rights add to the Constitution?

Identify the elements of political philosophy woven into Madison's Memorial. What would Madison's attitude be in today's controversies on church-state relations? (For example, do you think Madison would support or oppose prayer in public schools? at high school football games? Would he support or oppose a plaque of the Ten Commandments at the entrance to a public school? In a courtroom?)

What reasons do Madison and Jefferson give for separation of church and state? Do you agree or disagree and why? Do you think separation of church and state undermine morality and piety in the country?

What is the constitutional problem for Jefferson that he discusses in the last paragraph of the Virginia Statue for Religious Freedom?

Thursday, October 3 THE FEDERALISTS AND THE LAW

READ: Benedict, Chapter 5

READ: Web Syllabus: Judiciary Act of 1789; Jefferson's Opinion on the National Bank; Hamilton's Opinion on the National Bank; Chisholm v. Georgia

QUESTIONS TO THINK ABOUT:

For the Judiciary Act of 1789: Describe its major provisions. In what ways did this continue the Constitution's effort to create a strong national government? Is Section 25 justified based on your reading of the Constitution? Defend your judgment.

For opinions on the constitutionality of a National Bank--Jefferson v. Hamilton: What are the basic arguments of each? Who best captures the "intent of the framers"? How does each justify his interpretation of the Constitution? If you were Washington, who would you support and why?

For Chisholm v. Georgia --Brief the case. Be sure to include a notation on which section(s) of the Constitution were at issue. Think about whose opinion you agree with and why.

NOTE: No threaded discussion today. Instead, turn in a brief of Chisholm v. Georgia. A brief includes (1) facts of the case [those relevant to the issues], (2) constitutional and legal issues, (3) court's ruling--that is the court's answer to the issues, and (4) the court's reasoning--that is the court's rationale for its ruling.

Thursday, October 10 THE FEDERALISTS AND THE LAW (continued)

READ: Hall, Chapter 6--Documents: The Sedition Act; The Kentucky and the Virginia Resolutions (3 documents); Rhode Island Reply to the Virginia Resolutions; New Hampshire Reply to the Virginia and Kentucky Resolutions; Lyon's Case; Republican Lawyer . . . on the Liberty of the Press; Federalist Editor . . . Lambastes President Jefferson

READ: Hall, Chapter 6--Essays by Levy and Berns

QUESTIONS TO THINK ABOUT:

What are the chief provisions of the Federal Sedition Act? What were the major arguments on both sides for and against them? What did Kentucky and Virginia propose to do? What are Zengerian principles and why are they insufficient to protect an individual's freedom to speak? Do you think the Federal Sedition Act was constitutional or did it conflict with the First Amendment? What is the new libertarian theory that Levy claims emerges? What does Berns argue? How does he differ from Levy? Who is right and why?

Tuesday, October 15 PUBLIC LAW AND THE JEFFERSONIANS

READ: Web Syllabus: Jefferson's First Inaugural

There's not much reading here so start reading for October 22--because there is a little extra + a paper.

Tuesday, October 22 JUDICIAL REVIEW AND THE JEFFERSONIAN ATTACK ON THE COURT

READ: Benedict, Chapter 6 READ: Hall,. Chapter 7--Documents: Hamilton "Defends Judicial Review"; Marbury v. Madison; Eakin v.

READ: Hall, Chapter 7 Essays by Stites and Wolfe

LIMIT - 3 pages (double spaced typed) - You may make the margins as narrow as you like, but I will not read more than three pages. You must learn to think about what you are writing and write succinctly. This exercise will help you sharpen your thought processes as well as your writing styles.

YOUR QUESTION: Based on your readings in Benedict, the documents in Hall, the Stites and Wolfe essays, and your reading of the Constitution and the arguments in Marbury v. Madison and Eakin v. Raub, does the Supreme Court have the power of judicial review as Marshall argued in Marbury v. Madison?

Defend your argument with specific references to the readings, logic, and other tools of critical reading and analysis as well as to the constitutional text .

In order to complete this assignment well, you should include in your essay: (a) a clear definition of judicial review; (b) a discussion of how Marshall defends the Court's right to exercise that power, listing all applicable constitutional provisions as well as other reasons; and a discussion of Gibson's counter-arguments; and a critical evaluation of all these arguments. In your analysis, you might also consider the following issues: (1) Marshall conceded that Congress, and indeed all of the departments of government are bound by the Constitution. Why, then, should the Court's interpretation of the Constitution prevail in a government of coequal but separate branches? and (2) If the Court has the power of judicial review, why did the framers of the Constitution not explicitly state it in Article III of the Constitution? Is it fair or right to imply such an important power that is not explicitly stated?

QUOTES TO THINK ABOUT:

Bishop Hoadly, 1717 before King of England: "Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intent and purposes, and not the person who first wrote or spoke them."

Louis Brandeis: "Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wide application than the mischief which gave it birth. This is peculiarly true of constitutions . . . . They are, to use the words of Chief Justice Marshall 'designed to approach immortality as nearly as human institutions can approach it.' . . . . In the application of a constitution therefore, our contemplation cannot be only of what has been but of what may be."

Thursday, October 24 JOHN MARSHALL AND HIS COURT

READ: Hall, Chapter 7 Documents: Articles of Impeachment Against Samuel Chase; M'Culloch v. Maryland; Niles' Weekly Register Assails the Court

READ: Hall, Chapter 10 Documents: Dartmouth College v. Woodward READ: Web Syllabus Documents: Fletcher v. Peck; Martin v. Hunter's Lessee; Cohens v. Virginia; Gibbons v. Ogden

REVIEW Hall, Chapter 7 essay by Wolfe, pp. 324-27

QUESTIONS TO THINK ABOUT:

First, be familiar with the cases. You should brief each case.

Second, for each case ask yourself:

(1) How does each case promote nationalism? How does the Court defend its nationalist rulings?

(2) Which economic group does this ruling favor? How? Why?

3. What devices/rationales does the Court use to defend its rulings? Does it rely on the text of the Constitution? on history? on original intent? on plain logic? etc.

Third, overall what were Marshall's contributions to constitutional development and constitutional interpretation? Do you think Marshall was a "judicial activist"?

Tuesday, October 29 ANDREW JACKSON CHALLENGES JOHN MARSHALL'S VISION

READ: Benedict, Chapter 7

READ: Hall, Chapter 8 Documents: Jackson on the People's Rights; Jackson Vetoes the Maysville Road Bill; Jackson Vetoes the Second Bank; Sen.Tyler on "King Andrew"; Webster on Responsibility in Government; DeTocqueville Contrasts Presidency and Monarchy; Whig Adams on the Ascendancy of the President

READ: Hall, Chapter 8 Essay by Remini

QUESTIONS TO THINK ABOUT:

What was Jackson's philosophy of government, his vision of the nature of the Union and the Constitution, and his view of the role of government in society? How does Jackson differ from Marshall? Why do you suppose they differ? Does either support one economic group more than the other? Which version best promotes "social justice"? Who is right about the bank--Jackson or Marshall?

Was Jackson a "king"--or at least would he have liked to be?

For the Remini article, be able to identify his thesis and provide at least two examples of how he supports that thesis. Do you agree with his position? Why or why not? Specifically, Remini argues that Jackson, although a democrat, held untenable views. Thus he subverted the doctrine of republicanism. What is the Adoctrine of republicanism@? Do you agree or disagree with Remini and why?

Thursday, October 31 - JOHN MARSHALL ERA--Challenges to National Supremacy

READ: Hall, Chapter 9 Documents: Calhoun Protests the Tariff; Calhoun Proposes Nullification; Webster on

the Nature of the Union; South Carolina's Ordinance of Nullification; Jackson's Proclamation to the People of South Carolina; South Carolina's Ordinance to Nullify the Force Bill; Worcester v. Georgia

QUESTIONS TO THINK ABOUT:

Brief Worcester v. Georgia How did Calhoun's Theory differ from Marshall's and Webster's? What was Jackson's reaction (and that of Congress) to Calhoun and South Carolina? Is Jackson being consistent compared to what you read before by him and his reaction to Marshall's rulings on the Cherokee Nation?

By today, you should be able to identify Marshall's, Webster's, Jackson's, and Calhoun's views of the nature of the Union and how they were similar and different from each other.

READ: Hall, Chapter 9 Essays by Remini and Ellis (Questions: what is each author's thesis? How do they differ and why? Was Jackson a nationalist or a states' rights advocate? What was the impact of nullification on the nation? political parties? the Constitution?)

OVERALL QUESTIONS: Who, of all those you have studied so far, has the "best" view of the Constitution? Upon what to you base your view--the "original intent" of the framers? the plain language of the Constitution? hindsight and your views as a Twenty-first Century person?

Tuesday, November 5 THE TANEY COURT

READ: (and brief) Hall, Chapter 10 Document: Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge

READ: (and brief) Web Syllabus Documents: New York v. Miln; Passenger Cases; Cooley v. Board of Wardens

READ: Hall, Chapter 10, Essays by Kutler and Newmyer

After reading the assigned reading Hall, Chapter 10 Document: Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge and Hall, Chapter 10, Essays by Kutler and Newmyer, write a paper of no more than two pages, typed, double spaced that includes the following:

First, brief the case (legally significant facts; issues; ruling [Taney's]; reasoning [first, Taney's in support of his ruling and then Story's in dissent and in support of the decision he would have issued]. The brief may be single spaced. Then, based on your understanding of the original intent of the Constitution, who was correct--Taney or Story. You must, of course, first explain what you view as the original intent of the AFramers@ generally and of the clause of the Constitution at issue specifically. (Thus you need to go back to the constitutional era; you might examine the Benedict text--both for the Constitution era and for this case.)

QUESTIONS TO THINK ABOUT:

• Do Taney's decisions promote nationalism or states rights?
• How does the Court defend its rulings?
• How does that defense differ from the reasoning used by the Marshall Court?
• Which economic groups does each ruling favor? How? Why?
• What devices/rationales does the Court use to defend its rulings? Does it rely on the text of the Constitution? on history? on original intent? on plain logic? etc.
• How do Taney's opinions reflected Jacksonian ideology?
• How does Story's dissent in Charles River Bridge and others who disagree with Taney represent Federalism and the ideology of the Marshall Court?

Tuesday, November 12 PRIVATE LAW - CHANGES IN PROPERTY LAW

READ: in Web Syllabus: Williard Hurst, "The Release of Energy"; Morton Horwitz, "Transformation in the

Conception of Property in American Law"; An Act for the Support and Regulation of Mills, 1795; Martin v. Bigelow (1827); Review of Angell, A Treatise on the Common Law . . . [of] Water Courses (1829); Snow v. Parsons (1856)

QUESTIONS TO THINK ABOUT:

Describe the changes in property law from the 18th to the 19th centuries. What is meant by "natural use," rule of "priority," "balancing test" "reasonable use"?

Do the courts embody an instrumental view of the law?

Are the courts "fair" to the owner of the flooded land, in their decisions? Is there a fairer solution?

What arguments could be made for the preservation of traditional property rights? What are the arguments for the changes in the common law of property?

READ: in Web Syllabus documents: Farwell v. The Boston & Worcester Rail Road Corp; Stark v. Parker

QUESTIONS TO THINK ABOUT:

How would you decide the Farwell case and on what basis? Is Shaw right in arguing that Farwell entered into an "implied contract of indemnity" with his employer? What do you think are the long range economic and social implications of this decision?

By what view of social justice, if any, is Stark v. Parker fair? Is the law biased toward on economic group or another?

Tuesday, November 19 SLAVERY AND SECESSION

READ: Benedict, Chapter 8 READ: Hall, Chapter 11 Documents: Prigg v. Pennsylvania; Fugitive Slave Act, 1850; Kansas-Nebraska

Act, 1854

READ: Web Syllabus - Massachusetts Personal Liberty Act; Revised Code of North Carolina; Ableman v. Booth

QUESTIONS TO THINK ABOUT:

Brief all cases (In Ableman v Booth, examine Taney's nationalism and think about how it is different from and similar to John Marshall's nationalism?)

How did the Massachusetts Personal Liberty Act attempt to obstruct the 1850 Fugitive Slave Law?

How do racial assumptions effect legislation, political activities, and court decisions?

Do attitudes towards federal power or states' rights effect people's attitudes toward slavery, legislation, political activities, or court decisions?

Thursday, November 21 SLAVERY AND SECESSION (continued)

READ: Dred Scott v. Sanford (place to read it to be assigned)

READ: Hall, Chapter 11 Documents: Lincoln and Douglas "Debate . . . "; READ: Hall, Chapter 11, Essay by Bestor

QUESTIONS TO THINK ABOUT:

See assignment for questions on Dred Scott case Were there any solutions to the controversy between the North and the South short of war? Was secession constitutionally justified?

WRITING ASSIGNMENT #6 - due November 21 - THE DRED SCOTT CASE

IN NO MORE THAN THREE PAGES: First, brief the case. Include in the reasoning section, the reasoning of both Taney and the dissenters. Next, based on your knowledge of history and the Constitution and the arguments presented by the justices in Dred Scott, whose decision best reflects the "framer's intent"? Do you think Taney's decision was well argued and well justified? What is your evaluation of the dissenting opinions? Defend your answer with specific reference to history, the Constitution, and constitutional interpretation. Use specific information from the arguments in the case and information previously gotten from this course. (Note: Bestor's essay will help you understand the material.)

Tuesday, November 26 & Tuesday, December 3

THE DOCTRINE OF SECESSION and the NATURE OF THE UNION

READ: Benedict, Chapter 9

READ: Hall, Chapter 11, Essay by Paludan

READ: Hall, Chapter 11, Documents: South Carolina Declaration of Causes of Secession; Lincoln's First Inaugural; The Confederate Constitution

QUESTIONS TO THINK ABOUT:

• Was the South constitutionally justified in seceding?
• Did the Constitution and constitutional doctrine have anything to do with explaining why the South seceded and why the North chose to fight against that secession?
• How was the Confederate Constitution different from the United States Constitution? Which version do you prefer and why?

Thursday, November 28 - THANKSGIVING BREAK

Thursday, December 5 THE CIVIL WAR AND CIVIL LIBERTIES

READ: Hall, Chapter 12, Documents: The Emancipation Proclamation; The Illinois State Register Denounces Emancipation

READ: Web Syllabus -- Ex Parte Merryman ; The Prize Cases ; Ex Parte Milligan

QUESTIONS TO THINK ABOUT:

• What was the constitutional basis for the Emancipation Proclamation? What slaves did it free? What slaves did it not free?
• Brief the cases and then ask yourself: Can (and should) an individual's civil liberties be protected as well during war as during peace? Where would you draw the line? Can you defend that line based on the Constitution? That is, are there certain civil liberties that are absolutely protected by the Constitution? What are they? What of other civil liberties? Are there any others protected, even conditionally, by the Constitution? Can a president suspend the privilege of the writ of habeas corpus? Can the military try civilians? If so, under what circumstances?

Final Examination - Wednesday, December 11 Noon - 1:50 p.m.