POLITICAL SCIENCE 271
AMERICAN CONSTITUTIONAL LAW I:
THE FOUNDING TO SECESSION

Prof. Kimberly Smith
Office: Willis 418
Office Hours: MW 9-11, F 1-2
Phone: 4123
E-mail: ksmith@carleton.edu

This course explores the development of American constitutional law from the founding era to the secession crisis. We’ll focus not only on constitutional doctrine but also on the broader intellectual and political context in which it evolved. Topics will include the intellectual origins of the Constitution, the Constitutional Convention and ratification, the development of the judiciary and centralization of federal power, the role of natural law in constitutional adjudication, the constitutional issues revolving around slavery, and the persistent institutional and sectional conflict that led to the nullification and secession crises.

Texts:

Kelly, Harbison and Belz, The American Constitution, Vol. I (7th ed.)
Cover, Justice Accused
Additional readings in coursepack and on reserve

Course requirements: The course will consist of lecture and discussion. You are expected to complete the readings before class so that you can come to class prepared to listen attentively and engage in a lively and thoughtful discussion.

Your grade will be computed as follows:

Bill of rights presentation: 15%
Midterm: 20%
Final: 30%
Research Paper: 20%
Participation: 15%

Participation and Attendance:

I will use the socratic method in this class. Each student should be prepared to answer searching questions about the assigned case every day. Students should be able to summarize the facts of the assigned case(s), explain the Court’s reasoning and the holding, explain the reasoning of the dissenting opinions, if any, and critique the Court’s decision

Because this in-class discussion is a critical part of learning to read and analyze cases, attendance is mandatory. You may have no more than three excused absences (an absence may be excused if it is due to serious illness, a real family emergency, or a school activity.) Each unexcused absence will result in your grade being lowered by 5%.

Group project: Bill of Rights

Each group will choose one of the following rights in the Bill of Rights:

The group will research the relevant constitutional provision and make a short presentation to the class explaining:

  1. where it came from (how did this particular right end up in the Bill of Rights?);
  2. its rationale (you may focus on what the founders probably meant by it or how modern scholars justify it);
  3. two or three key cases interpreting it.

The students may decide the best way to present the material, but the presentations may not go longer than 15 minutes. Be aware that your fellow students will be held responsible for knowing this material; it will be tested on the midterm and final. They are counting on you to be clear and accurate.

Grade: Each group will be awarded points based on the quality of the presentation; the group will decide how to split up the points among the members and inform me of their decision. However, group members may appeal the group’s decision to me.

Resources: The following sources may be helpful. However, you should seek out additional sources. You will be evaluated in part on the depth and breadth of your research.

On reserve:

Amar, The Bill of Rights: Creation and Reconstruction
Hickok, The Bill of Rights: Original Meaning and Current Understandings
Kutler, The Supreme Court and the Constitution

In Reference section:

Cogan, The Complete Bill of Rights

Research Paper

Your assignment is to research a significant constitutional case and explain why it’s important to the development of constitutional law, to constitutional politics, and to the development of the Court as a political institution. You may choose to discuss two related cases, but no more than two. Your paper should contain four parts, but you may arrange these parts in whatever order seems best to you:

  1. Explain the facts of the case: how it arose, how it was decided in the lower courts, who was involved with the case, and any other relevant information.
  2. Explain the political context of the decision: Why was it politically controversial? What political pressures did the Court face? Where did each Justice stand on the issue?
  3. Explain and evaluate the reasoning of the majority and dissenting opinions. Were their arguments sound? How did the opinion change the law?
  4. Discuss the decision’s impact: Did it change the way other government officials operate? Did it alter the balance of power among the branches of government? Did it affect other areas of constitutional law? Overall, was it a good decision?

Your paper should be typed (12-point font), double-spaced, and no more than 15 pages.
You will turn in drafts of sections of the paper throughout the term, as indicated on the syllabus. The final draft is due Friday, March 1. There will be no extensions.

Suggested cases: (You may choose a case not on this list; just clear it with me first.)

Chisholm v Georgia, 2 Dallas 419 (1793)
The Trial of Aaron Burr (1807)
United States v Peters, 5 U.S. 115 (1809)
Marbury v. Madison, 5 US 137 (1803)
Martin v Hunter’s Lessee, 14 US 304 (1816)
Cohens v Virginia, 19 US 264 (1821)
McCulloch v Maryland, 17 US 316 (1819)
Fletcher v Peck, 10 US 87 (1810)
U.S. v Hudson and Goodwin, 11 U.S. 32 (1812)
Dartmouth College v Woodward, 4 Wheaton 518 (1819)
Gibbons v Ogden, 22 US 1 (1824)
Barron v Baltimore, 5 U.S. 243 (1833)
Charles River Bridge v Warren Bridge, 36 US 420 (1837)
Worcester v Georgia, 6 Peters 515 (1832) & Cherokee Nation v Georgia, 5 Peters 1 (1831)
Prigg v Pennsylvania, 41 US 539 (1842)
Luther v Borden, 7 U.S. 1 (1849)
Ableman v Booth, 21 Howard 506 (1856)
Dred Scott v Sanford, 60 US 393 (1857)

You should include a bibliography and document your references (you may use the Chicago Manual of Style or MLA, as long as you are consistent.) A thoroughly researched paper will draw on many sources, including both books and periodicals. Please do not rely on the internet.

COURSE OUTLINE
  1. Origins
    2.

     

    Class 1: Introduction

    Class 2: Intellectual Origins of the American Constitution

    Kelly, Harbison & Belz (KHB), Ch. 3, 4

    Locke, Two Treatises (selection) [handout]

    Blackstone, Commentaries (selection) [handout]

    Class 3: What is a "Constitution"?

    Waldron, Precommitment and Disagreement [R]

  2. The Constitutional Convention and Ratification
    3.

    Class 4: The Founding: Interpretations

    Beard, Framing the Constitution [R]

    Roche, The Founding Fathers: A Reform Caucus in Action [R]

    Class 5: The Founding: Structure and Controversies

    KHB Ch. 5, 6

    Articles of Confederation (in KHB)

    Constitution (in KHB)

    Class 6: Theory of the Constitution

    Federalist Papers #10, #39, #51, #78, #80, #81 [CP]

    Antifederalist essays (Centinel I, Federal Farmer I) [CP]

    Class 7: Does the Founding Matter?

    Paul Brest, The Misconceived Quest for Original Understanding [R]

    Class 8: The Bill of Rights

    Federalist #84 [CP]

    Madison’s Remarks on the Bill of Rights (Congressional Debates) [CP]

    *Student presentations

    Class 9: The Bill of Rights cont.

    Barron v Baltimore, 5 U.S. 243 (1833) [find on LEXIS]

    *Student presentations

     

  3. The Alien and Sedition Acts
    4.

    Class 10: Seditious Libel and Freedom of Speech

    KHB Ch. 7, 8

    Zenger’s Case (Hamilton’s summation) [CP]

    Class 11: Federalism, Parties and the Constitution

    Sedition Act & Congressional debate on repeal [CP]

    Virginia and Kentucky Resolutions [CP]

    *Research paper: Facts section due

  4. Marshall and the Development of the Federal Judiciary
    5.

    Class 12: Building the Federal Judiciary

    KHB Ch. 9, 10, 11

    Judiciary Act of 1789 [CP]

    Antifederalist essay (Brutus 11) [CP]

    Class 13: Establishing Judicial Review

    Calder v Bull [CP]

    Marbury v Madison [CP]

    Eakin v Raub [CP]

    Class 14: The Eleventh Amendment

    Chisholm v Georgia [CP]

    Eleventh Amendment

    Class 15: Establishing Federal Judicial Supremacy

    Cohens v Virginia, Martin v Hunter’s Lessee [CP]

    Fletcher v Peck [CP]

    *Research paper: Revised facts and discussion of context due

    Class 16: More Constitutional Theory

    DEBATE: Who should interpret the Constitution?

    Class 17: MIDTERM EXAM

     

  5. Jackson v Marshall
    6.

    Class 18: The Bank War

    KHB Ch. 12, 13

    McCulloch v Maryland [CP]

    Jackson’s Veto Message [CP]

    Class 19: Indian Removal

    Cherokee Nation v Georgia [CP]

    Worcester v Georgia [CP]

    Class 20: Nullification

    Nullification Proclamation [CP]

    Class 21: Marshall v Taney

    Gibbons v Ogden [CP]

    Charles River Bridge v Warren Bridge [CP]

    [read ahead: KHB Ch. 14, 15]

  6. Slavery and Secession
    7.

Class 22: KHB, Ch. 14, 15

Cover, Justice Accused, ch. 1-3

Class 23: Justice Accused, ch. 4-6

Class 24: Justice Accused, ch. 10-11

Prigg v Pennsylvania [CP]

*Final draft of research paper due

Class 25: Shapiro, The Rendition of Anthony Burns [R]

Arguments on removal of Judge Loring [CP]

Class 26: Ableman v Booth [CP]

Class 27: Dred Scott v Sanford [CP]

Class 28: Secession

DEBATE: Was secession justified?

Final Exam: Thurs. March 14, 7-9 pm, or self-scheduled