THE FOURTEENTH AMENDMENT AND THE RIGHTS REVOLUTION

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1 Williams College History 152 Fall 2008 Mon. & Thurs., 1:10-2:25 Sara Dubow North Academic Building 355, x3240 Office Hours: Wed., 10-11; Thur., and by appointment THE FOURTEENTH AMENDMENT AND THE RIGHTS REVOLUTION Course Description For more than a century, the 14 th Amendment of the U.S. Constitution has served as the principal touchstone for legal debates over the meaning of equality and freedom in the United States. This course explores the origins of the 14 th Amendment in the years immediately following the Civil War, and examines the evolution of that amendment s meaning in the century that followed. Central themes in this course include the contested interpretations of due process, privileges and immunities, equal protection, and life, liberty or property ; the rise, fall, and rebirth of substantive due process; and the battles over incorporating the Bill of Rights into the 14 th Amendment. We will pay particular attention to how debates over the 14 th Amendment have shaped and been shaped by the changing meanings of racial and gender equality, and how the 14 th Amendment has transformed the promise and experience of American citizenship. This course is designed to help students develop the skills of critical reading and oral discussion of historical sources and historical scholarship. As a writing-intensive course, it culminates in the writing of a research paper, based on primary and secondary sources, of pages. Students will select their own topic to research and will meet with me individually throughout the process, but we will devote class time to the various steps in developing a research question, identifying and analyzing primary and secondary sources, and organizing and writing the paper. This course will be run as a seminar, which means that classes will focus on round-table discussions of the readings rather than lectures and will depend on your regular attendance, completion of the assigned readings before class meetings, and constructive and informed participation. Class attendance and participation are essential and mandatory. Do not miss class unless you are very sick or have other extenuating circumstances. If you do need to miss class, I expect you to inform me prior to class. Failure to do so will be considered an unexcused absence, and unexcused absences may result in a final grade of F. Evaluation will be based on class participation (25%); five 2-3 page writing assignments (40%); an oral research presentation (10%); and a page research paper (40%). In evaluating your participation, I will consider your regular attendance, your demonstrated preparation for and constructive engagement in class, and your completion of any in-class assignments. In evaluating your written work, I will consider how well you have demonstrated your understanding of the material; formulated a thoughtful, engaging, and persuasive argument; supported your statements with evidence; and presented your ideas clearly and coherently. At least one of your short papers must be completed by September 29, and at least two more must be completed by October 30. The short papers are due at the beginning of class. Students are required to complete all assignments to pass the course. Extensions will be granted only in exceptional circumstances and only if they are arranged in advance; late papers will receive a grade penalty.

2 2 All written work for this course is covered by the Williams Honor Code, as described in the student handbook. Plagiarism is the representation of the words or ideas of another as your own work, and is a violation of that code. You may not copy another writer s exact words without using quotation marks and citing their source. Nor may you use the ideas of another without citing them in a reference. You may not submit previously written papers. If you have any questions about the appropriate times for, or forms of, citing, paraphrasing, or footnoting, please talk to me so we can avoid potential problems. Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (2006) Kermit Hall, et al., eds., American Legal History: Cases and Materials (3 rd ed.) John A. Garraty, Quarrels that Have Shaped the Constitution (1988) William Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (1995) Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2004) Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (Hill & Wang, 1998) Course packet of cases available in Weston All books are available at Water Street Books. They are also on reserve in Sawyer Library. Some of them should be available at the 1914 Library. 1. Thursday, September 4 - Introduction 2. Monday, September 8 Civil War & Reconstruction Hall, American Legal History (hereafter ALH, pp ; ; ; (Dred Scott v. Sandford, Note: The Reaction to Dred Scott, Reconstruction and Its Aftermath: Political Change; Black Freedom, Mississippi Black Codes, Notes: Civil Rights Act of 1866, Johnson s Veto, The Freedman s Bureau, The Civil Rights Act of 1875; 13 th & 14 th Amendments) Quarrels That Have Shaped the Constitution (hereafter, Quarrels), chapter VI, Don E. Fehrenbacher, The Dred Scott Case, pp Thursday, September 11 A Revolution or a Rebirth? Garrett Epps, Democracy Reborn (entire)

3 3 4. Monday, September 15 First Interpretations: Privileges and Immunities ALH, ; (The End of Civil Rights, Slaughterhouse Cases, Note: The Slaughterhouse Legacy, Note: Civil Rights Cases; Bradley dissent in Slaughterhouse) Quarrels That Have Shaped the Constitution, (hereafter, Quarrels) chapter IX, Alan F. Westin, The Case of the Prejudiced Doorkeeper, pp Paper Option 1 Explain whether or not you think the Supreme Court misinterpreted the Fourteenth Amendment in Slaughterhouse and the Civil Rights Cases. Your argument should draw on the history of the Fourteenth Amendment, Reconstruction, and post-bellum American history, as well as on the specific facts of selected cases. 5. Thursday, September 18 First Interpretations: Race and Gender Equality ALH, ; ; (Plessy v. Ferguson, Yick Wo v. Hopkins, Minor v. Happersett) Coursepack, pp. 1-11, Bradwell v. Illinois) Quarrels, chapter X, C. Vann Woodward, The Case of the Louisiana Traveler, pp Michael Klarman, From Jim Crow to Civil Rights, pp Paper Option 2 Explain how and why the Supreme Court conceptualized race, ethnicity and gender differently in these early efforts to interpret the Fourteenth Amendment. In what ways do these decisions reinforce each other, and in what ways do they contradict each other? 6. Monday, September 22 Liberty and Power: The Origins of Substantive Due Process ALH, (Munn v. Illinois, In Re Jacobs, In re Debs, U.S. v. Knight, Allegeyer v. Louisiana, Holden v. Hardy, Champion v. Ames) Quarrels, chapter VIII, C. Peter Magrath, The Case of the Unscrupulous Warehouseman, pp Paper Option 3 Based on Munn v. Illinois and Holden v. Hardy, please explain the political, social, and constitutional arguments for and against the theory of substantive due process, as articulated in Field s dissent in Munn. Do you agree with the distinction Field makes between private rights and public property, or with Waite s argument that when property is affected with a public interest, it ceases to be juris privati only? How do you think that the courts should balance the interests of society and the rights of individuals?

4 4 7. Thursday, September 25 Liberty of Contract and the Difference Gender Makes ALH, ; (Lochner v. New York, Muller v. Oregon, Oliver Wendell Holmes Jr., Law and the Court, Oliver Wendell Holmes, Jr. and Judging, Louis D. Brandeis, Brief for the Defendant in Error Quarrels, chapter XII, Alpheus Thomas Mason, The Case of the Overworked Laundress, pp Paper Option 4 How and why did a divided court in Lochner become a unanimous court in Muller? What's the difference between the two cases? How does the Court in Muller justify its result? Do you think the result in Muller was good for women or not and why? 8. Monday, September 29 The Constitutional Revolution of the 1930s William Leuchtenburg, The Supreme Court Reborn, ALH, (The New Deal and the Rise of Legal Liberalism, The State and Federal Legislative Response, The Supreme Court and the New Deal, Schecter v. U.S., U.S. v.butler, FDR s Court- Packing Plan, Franklin Roosevelt, Fireside Chat on the Court-Packing Bill, Note: The Fate of FDR s Court-Parking, The Retreat from Economic Substantive New Process, West Coast Hotel v. Parrish, Note: The Decline of Substantive Due Process, Ordered Liberty, Preferred Positions and Selective Incorporation, Palko v. Connecticut, Note: Carolene Products and Preferred Positions, U.S. v. Carolene Products Co.) Quarrels, chapter XIV, Frank Freidel, The Sick Chicken Case, pp Paper Option 5 Do you agree with the court s conclusion that employers and employees were not equally free in negotiating contracts? If there are different degrees of freedom, how does/should the court decide that the gap requires or allows for government regulation? Is this case better understood as a case about the relationship between government, labor, and business, or as a case about gender difference? In other words, how might a decision that focused less on due process and more on equal protection be different? What arguments focusing on equal protection could be used to dissent? How might a more considered attention to the issue of gender change Leuchtenberg and Freidel s interpretations of this case?

5 5 9. Thursday, October 2 Civil Liberties, Equal Protection and Strict Scrutiny ALH, pp (World War I and Civil Liberties, The Suppression of Dissent During World War I, Paul Murphy, World War I and the Origins of Civil Liberties in the United States, Censorship During World War I, Schenck v. United States, Notes: Debs v. United States, Abrams et al v. United States, Note: The Abrams Dissent, Radicals and Civil Liberties, Note: Civil Liberties and Fourteenth Amendment Incorporation, Whitney v. California, World War II and Legal Developments, The Flag Salute Cases, West Virginia State Board of Education v. Barnette, Japanese Internment, Note: Executive Order No. 9066, Hirabayashi v. United States, Korematsu v. United States Paper Option 6 Korematsu is the only Supreme Court decision purporting to apply strict scrutiny that results in a challenged classification disadvantaging a racial minority being upheld. How do you account for the outcome of this case? Do you agree with the decision? If not, explain the constitutional problems with the majority opinion, and explain what you think would be the most persuasive arguments for dissenting in this case? 10. Monday, October 6 Separate But Equal Michael Klarman, From Jim Crow to Civil Rights, ALH, (Civil Rights and Racial Justice, Race and Education, Missouri ex rel. Gaines v. Canada, Note: Beyond Gaines) 11. Thursday, October 9 No Class (Yom Kippur) Monday, October 13 No Class: Reading Period 12. Thursday, October 16 (LIBRARY DAY) Class meets in on the main floor of the library. Lori DuBois, the library liaison to the History department will teach some basic skills in legal research. Research Proposal Bring to the library two copies of a proposal that discusses two cases you are considering writing about for your research paper, including a brief description of the cases and a brief explanation of your interest in them.

6 6 13. Monday, October 20 Brown & Beyond Klarman, From Jim Crow to Civil Rights, Quarrels, Chapter XVIII, Alfred H. Kelly, The School Desegregation Case, pp Coursepack, Cass Sunstein, Rewriting Brown: What Should the Decision Have Said?, Paper Option 7 Should the Court have ordered the immediate integration of public schools in 1954, rather than requiring integration with all deliberate speed? What do you think would have been the likely result of an immediate and massive integration of the public schools? Would it have been any worse than the problems associated with the Brown II decision and aftermath? Do you agree with Michael Klarman s backlash thesis? Why or why not? 14. Thursday, October 23 Is Class a Protected Category? Reading Coursepack, San Antonio School District v. Rodriguez, Paper Option 8 The San Antonio case raises fundamental questions about education equity, and the connections between educational attainment and democratic participation as a citizen in the United States. It also asks us to consider the historical and legal relationship between race and class. What are those questions, and how would you respond to them? Explain why you think the San Antonio case was decided correctly or incorrectly. Your analysis should be based on your understanding of the previous decisions about the 14 th Amendment and education. 15. Monday, October 27 Due Process & Incorporation Reading Leuchtenburg, The Supreme Court Reborn, Quarrels, chapter XIX, Anthony Lewis, The Case of the Florida Drifter, pp ALH, (Engel v. Vitale, New York Times v. U.S., U.S. v. Washington Post, Miranda v. Arizona)

7 7 16. Thursday, October 30 Equal Protection & Sex Discrimination, Part I Reading Linda Kerber, Chapter 4, Woman is the Center of Home and Family Life: Gwendolyn Hoyt and Jury Service in the Twentieth Century, and in No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (NY: Hill & Wang, 1998), Coursepack, Hoyt v. Florida, Reed v. Reed, pp Monday, November 3 Equal Protection & Sex Discrimination, Part II Reading Linda Kerber, Chapter 5, A Constitutional Right to be Treated Like American Ladies : Helen Feeney, Robert Goldberg, and Military Obligation in Contemporary America, in No Constitutional Right to Be Ladies, pp Coursepack, Frontiero v. Richardson, Weinberger v. Wiesenfeld, Craig v. Boren, Michael M. v. Superior Court of Sonoma County, Jeffrey Rosen, Separate But Equal at VMI, and U.S. v. Virginia, pp Paper Option 9 Much of the law surrounding equality (including the Fourteenth Amendment itself) was conceptualized around the idea of race. Has the application of concepts like heightened scrutiny and suspect classifications to gender and/or sexual orientation been successful? Or is gender a social category that is fundamentally different from race? Choose two or three cases to explore your argument, focusing primarily on the post-world War II era. 18. Thursday, November 6 The Rise and Fall of Affirmative Action Bakke v. California 438 U.S. 265 (1978) (handout) Coursepack, Grutter v. Bolinger, Richmond v. Croson Handout, Parents Involved v. Seattle School District (2007 Paper Option 10 Which of the various state interests alleged by California in the Bakke case seem the most compelling to you? Which seem the least compelling to you? Do you agree with Justice Powell s analysis with respect to whether UC-Davis s classification was a narrowly tailored means of serving the various interests alleged? Both the majority and dissent in Parents Involved v. Seattle claim the mantle of Brown v. Board of Education? Which side has the better argument?

8 8 19. Monday, November 10 Privacy: When, Where, and for Whom? Griswold v. Connecticut, 381 U.S. 479 (1965) and Roe v. Wade, 410 U.S. 113 (1913) (handouts) Coursepack, Casey v. Planned Parenthood, Kelly v. Johnson, Bowers v. Hardwick, Lawrence v. Texas Paper Option 11 Assuming that there exists a general right of privacy, what sort of conduct do you think lies at its very center? What sort of conduct lies at its periphery? What sort of conduct should be considered outside of the protection of a reasonably interpreted right of privacy? The choice of a woman to have an abortion was found in Roe v Wade to be the sort of fundamental personal decision deserving privacy protection under the Fourteenth Amendment's liberty clause. In what respects is abortion a private matter, and in what respects might it not be? If you don't believe that the Constitution protects the decision to have an abortion, do you believe that it would prevent the government from forcing a woman to have an abortion and, if it would, what is the constitutional basis for that protection? Justice Scalia strongly criticized the majority's reliance, in Lawrence, on European decisions affording legal protection to homosexuals engaging in private sexual conduct. To what extent to you see decisions and trends in other parts of the world as being relevant to interpretation of our Constitution? 20. Thursday, November 13 Fundamental Rights: Marriage and Reproduction Coursepack, Skinner v. Oklahoma, Loving v. Virginia Goodridge v. Department of Public Health, 798 N.E. 2d 941 (Mass. 2003) Paper Option 12 What evidence should we look to in determining whether a right is fundamental to the American scheme of justice? Whether history shows the right has always been respected? Whether history shows the right has been respected in recent times? Whether or not the vast majority of states have respected the right in question? What the framers and ratifiers of the Bill of Rights thought about the right? Whether or not we can imagine a fair system of justice without the right in question?

9 9 Do you agree with the Massachusetts ruling concerning same-sex marriages? Do you think laws prohibiting same-sex marriages should be found to violate the Equal Protection Clause of the United States Constitution? Should the Constitution be amended to prohibit samesex marriages? What legitimate interest does the state have, if any, in prohibiting two persons of the same sex from entering into a marriage relationship? 21. Monday, November 17 Research Presentations/Writing Workshop 22. Thursday, November 20 Research Presentations/Writing Workshop 23. Monday, November 24 Research Presentations/Writing Workshop Thursday, November 27 No Class: Thanksgiving 24. Monday, December 1 Research Presentations/Writing Workshop 25. Thursday, December 4 Final Paper Due. In class: Turn in final papers and complete course evaluations

10 RESEARCH PAPER: CASES IN CONTEXT One of the central objectives of this class is to gain an understanding of how the meaning of the Fourteenth Amendment has evolved over the 135 years since it became a part of the Constitution. As we have seen in our class discussions, the historical context in which the 14th Amendment was adopted and in which it has been interpreted since have fundamentally shaped the particular questions brought before the Supreme Court and the Court s interpretation of the Amendment. This assignment is intended to give you the opportunity to focus on the historical context of a single Fourteenth Amendment case of specific interest to you and to share what you learn with the class as a whole. Each student will select one 14th Amendment case from the attached list and write a research paper that explains and analyzes the case in its historical context. Your paper must draw on primary and secondary sources. Your audience will be other students in this class, but you will be the only one working on the particular case and so must assume that others will not be familiar with the case itself or the broader historical context. Your final paper should be pages (plus bibliography), double-spaced in 12 point font. I will use the following criteria to evaluate your final paper: 1) quality, originality, and creativity of ideas and thesis; 2) quality of research and integration and interpretation of primary and secondary evidence; 3) organization and development; 4) clarity and style; and 5) sentence structure and mechanics. I have broken the assignment down into a series of stages, noted below with the due dates for each. The intermediate stages are required parts of the assignment. I am available during office hours and by appointment to help you at every stage of your work on this project. 1. October 16. Submit research proposal that describes two cases that you would like to work on, and explains what interests you about each case or time period. To ensure access to relevant library materials and to give the class as a whole as broad a learning experience about the history of the 14th Amendment as possible, only one student may work on each case. 2. Before October 27: Come to my office hours or schedule an appointment. You should bring with you: 1) a one-paragraph description of the key elements of the case, including the year the case was decided; the general subject area (e.g., adoption, segregation, Native American citizenship etc.); and the court s decision; 2) a one paragraph assessment of the most salient elements of the time period in which the case was decided for the case itself. You may frame these as questions or arguments; and 3) a tentative bibliography identifying relevant primary and secondary sources. 3. Before November 17: Come to my office hours or schedule an appointment. You should come to meeting with notes answering the following questions: What is the central question of your paper? What is your tentative thesis? What evidence will help you support your argument? How will you organize that evidence? 4. November 17, November 20, November 24, and December 1: In-class research presentations 5. December 4: Final Paper Due

11 11 List of Suggested Cases You may write about any of the cases we have read about in class, with the exception of Munn, Civil Rights Cases, Plessy, Muller, Schechter, West Coast Hotel, Brown, Gideon, and Roe. We have read articles about each of these cases in Quarrels, and those articles can serve as models for the type of paper you are going to write. 1. Strauder v. West Virginia, (1880) Exclusion of African Americans from jury service 2. Elk v. Wilkins, (1884) Native American citizenship/voting 3. Santa Clara County v. Southern Pacific Railroad, (1886) Corporations as persons under the 14 th Amendment & taxation as violation of equal protection 4. Gong Lum v. Rice, (1927) Exclusion of minority children from schools/equal protection 5. Powell v. Alabama, 287 U.S. 45 (1932) Right to counsel/due process/incorporation 6. Breedlove v. Suttles, (1937) Poll tax/equal protection 7. Palko v. Connecticut, (1937) Does double jeopardy/fifth amendment apply to states 8. Shelley v. Kraemer, (1948) Restrictive covenants (real estate) & equal protection 9. Oyama v. California (1948) aliens right to own/lease land equal protection 10. Mapp v. Ohio (1961) Does fourth amendment/search and seizure apply to states? 11. Graham v. Richardson, (1971) Welfare benefits: Alienage as suspect classification? 12. Milliken v. Bradley, 418 U.S. 717 (1974) busing & equal protection 13. Harris v. McRae, (1976) Does Hyde Amendment limiting use of federal funds for abortions violate equal protection/liberty clause? 14. Moore v. East Cleveland, (1977) Does housing ordinance limiting occupancy to single family violate equal protection clause? 15. Plyler v. Doe, (1982) Law denying undocumented children free public education/equal protection 16. Cleburne v. Cleburne Living Center (1985) is mental retardation a suspect or quasi-suspect category? 17. Batson v. Kentucky (1986) Juror exclusion based on race as violation of equal protection 18. Gregory v. Ashcroft (1991) Mandatory retirement as violation of equal protection clause 19. Romer v. Evans (1996) Gay rights & equal protection 20. Connecticut Department of Public Safety v. John Doe (2003) registering sex offenders as violation of liberty and/or due process clause