PART 1. STRUCTURE AND POWERS OF THE NATIONAL GOVERNMENT

Transcription

1 SUMMARY OF CONTENTS PREFACE... V TABLE OF CASES... XXV THE CONSTITUTION OF THE UNITED STATES... 1 PART 1. STRUCTURE AND POWERS OF THE NATIONAL GOVERNMENT Chapter 1. Introduction to the Constitution I. Before the Constitution II. The Constitution III. Interpreting the Constitution: The Alien and Sedition Acts Chapter 2. The Separation of the National Powers I. Article I: The Legislative Power II. Article II: The Executive Power III. Article III: The Judicial Power Chapter 3. Federalism I. Article I, Sections 8 and 10: Federalism and National Powers II. Article IV: Federalism and the Relationship of the States to Each Other and to the Nation Chapter 4. The Amendment Process I. A Perfect Problem II. The Riddles of Article V PART 2. RIGHTS AGAINST THE GOVERNMENT Chapter 5. The Bill of Rights I. The First Amendment and Freedom of Speech II. The First Amendment and Freedom of Religion III. The Second and Third Amendments IV. Criminal and Civil Proceedings: The Fourth, Fifth, Sixth, Seventh, and Eighth Amendments V. The Takings Clause VI. The Ninth and Tenth Amendments Chapter 6. The Reconstruction Amendments I. Foundations of the Thirteenth and Fourteenth Amendments II. Equal Protection of the Laws III. Due Process of Law IV. The Fifteenth Amendment APPENDIX ARTICLES OF CONFEDERATION INDEX vii

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3 TABLE OF CONTENTS PREFACE... V TABLE OF CASES... XXV THE CONSTITUTION OF THE UNITED STATES... 1 PART 1. STRUCTURE AND POWERS OF THE NATIONAL GOVERNMENT Chapter 1. Introduction to the Constitution [Assignment 1] I. Before the Constitution English and American Constitutionalism American Antecedents to the Constitution The Convention and Ratification The Federalist No The Federalist No The Federalist No Notes Ratification and the Bill of Rights Herbert Storing, What the Anti-Federalists Were For Notes [Assignment 2] II. The Constitution The Federalist No Six Broad Themes of the Constitution The Dead-Hand Problem Types of Constitutional Argument A Map of the Constitution [Assignment 3] III. Interpreting the Constitution: The Alien and Sedition Acts The Alien Enemies Act The Alien Friends Act The Sedition Act Notes Judicial Enforcement of the Sedition Act Lyon s Case Notes The Virginia and Kentucky Resolutions Thomas Jefferson, Draft of the Kentucky Resolutions Rhode Island s Answer to the Virginia Resolutions The Minority Report to the Virginia Resolutions James Madison, Report of Notes The Election of 1800 and President Jefferson s Pardons Notes ix

4 x TABLE OF CONTENTS Chapter 2. The Separation of the National Powers [Assignment 4] An Introduction to the Separation of Powers Youngstown Sheet & Tube Co. v. Sawyer Notes [Assignment 5] I. Article I: The Legislative Power A Map of Article I A. Legislative Specificity and Delegation: Shall Be Vested in a Congress of the United States The Post Roads Debate Notes A Note on Schechter Poultry Mistretta v. United States Notes [Assignment 6] B. The Composition of Congress: The House of Representatives... and the Senate of the United States shall be composed Powell v. McCormack Notes U.S. Term Limits, Inc. v. Thornton Notes [Assignment 7] C. Legislative Procedure and Prerogatives: Each House may determine the Rules of its Proceedings McGrain v. Daugherty Notes Committee on the Judiciary, U.S. House of Representatives v. Miers Notes Illustrating Congressional Procedure: The Filibuster Notes [Assignment 8] D. Bicameralism and Presentment: Every Bill which shall have passed the House of Representatives and the Senate, shall... be presented to the President INS v. Chadha Notes Clinton v. City of New York Notes [Assignment 9] E. The Power of the Purse: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law United States v. Lovett Barack Obama, Statement on H.R Notes U.S. House of Representatives v. Burwell Notes

5 TABLE OF CONTENTS xi [Assignment 10] II. Article II: The Executive Power A Map of Article II The Federalist No A. The Appointment Power: he... shall appoint The Federalist No Notes Buckley v. Valeo Notes National Labor Relations Board v. Noel Canning Notes [Assignment 11] B. Supervising the Executive Branch: in a President The Removal Power and the Decision of Myers v. United States Notes Humphrey s Executor v. United States Notes The Power to Direct Subordinates William Wirt, Opinion on the Accounting Officers Roger Taney, Opinion on the Jewels of the Princess of Orange Notes [Assignment 12] C. Suspending and Dispensing Powers?: he shall take Care that the Laws be faithfully executed United States v. Cox Notes Adams v. Richardson Notes Karl R. Thompson, The Department of Homeland Security s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others Notes [Assignment 13] D. Synthesis: Appointment, Removal, and Enforcement Discretion Morrison v. Olson Notes [Assignment 14] E. Foreign Affairs: he shall receive Ambassadors The Neutrality Controversy George Washington, The Proclamation of Neutrality Pacificus, No Helvidius, Nos. 1 & The Neutrality Act of Notes Zivotofsky v. Kerry Notes A Note on Executive Agreements A Note on the Iranian Nuclear Agreement

6 xii TABLE OF CONTENTS [Assignment 15] F. War: Congress shall have power... To Declare War but The President shall be Commander in Chief Starting War Text Historical Context James Madison s Notes from the Constitutional Convention: To Make War Notes Practice and Precedent The Brig Amy Warwick (The Prize Cases) Notes Declaration of War Against Japan The Gulf of Tonkin Resolution Notes The War Powers Resolution of Richard Nixon, Statement Vetoing the War Powers Resolution Notes Authorization for Use of Military Force Notes The War Powers Debate Continues: Libya Terminating War [Assignment 16] Conducting War Abraham Lincoln, The Preliminary Emancipation Proclamation Abraham Lincoln, The Final Emancipation Proclamation Notes Abraham Lincoln, Order of Retaliation Notes Korematsu v. United States Notes Hamdi v. Rumsfeld Notes [Assignment 17] G. Impeachment: The President... shall be removed from Office on Impeachment... and Conviction David Currie on the Impeachment of Andrew Johnson Notes United States v. Nixon Notes Law Professors Letter on the Clinton Impeachment Charles Canady, Statement on Impeachment of President Clinton Notes [Assignment 18] III. Article III: The Judicial Power A Map of Article III A. Judicial Review Brutus, No The Federalist No

7 TABLE OF CONTENTS xiii Background to Marbury Marbury v. Madison Notes Stuart v. Laird Notes [Assignment 19] B. The Constitutional Dilemma of Judicial Supremacy : Lincoln v. Douglas Abraham Lincoln, Speech at Springfield, Illinois Abraham Lincoln, Speech at the First Lincoln-Douglas Debate Stephen Douglas, Speech at the Third Lincoln-Douglas Debate Abraham Lincoln, Speech at the Fifth Lincoln-Douglas Debate Stephen Douglas, Speech at the Fifth Lincoln-Douglas Debate Abraham Lincoln, Speech at the Sixth Lincoln-Douglas Debate Stephen Douglas, Speech at the Sixth Lincoln-Douglas Debate Abraham Lincoln, Speech at the Sixth Lincoln-Douglas Debate Notes : Cooper v. Aaron Cooper v. Aaron Notes Ex parte Merryman and Specific Judgments Ex parte Merryman Edward Bates, Opinion on the Suspension of the Privilege of the Writ of Habeas Corpus Notes [Assignment 20] C. Adjudication of Genuine Disputes: Cases [and] Controversies The Correspondence of the Justices Thomas Jefferson, Letter to the Justices of the Supreme Court The Letter of the Supreme Court Justices to President Washington Notes Alexis de Tocqueville on the American Judiciary Ex parte Levitt Notes United States v. Windsor Notes Mootness and Ripeness [Assignment 21] D. The Political Question Doctrine Luther v. Borden Notes (Walter) Nixon v. United States Notes [Assignment 22] E. The Eleventh Amendment and Sovereign Immunity: The Judicial power... shall not... extend to Chisholm v. Georgia Notes

8 xiv TABLE OF CONTENTS Chapter 3. Federalism [Assignment 23] A Map of the Constitution s Federalism Provisions The Political Theory of American Federalism The Federalist No Notes I. Article I, Sections 8 and 10: Federalism and National Powers A. Introduction to the Scope of National Powers: The Bank of the United States The First Bank of the United States James Madison, Speech on the Bank Bill Thomas Jefferson, Opinion on the Bank Bill Alexander Hamilton, Opinion on the Bank Bill [Assignment 24] The Second Bank of the United States McCulloch v. Maryland Notes After McCulloch James Madison, Letter to Lafayette Andrew Jackson, Veto Message on the Bank The Death of the Second Bank The Bank and Constitutional Interpretation [Assignment 25] B. The Power to Regulate Commerce Among the Several States Gibbons v. Ogden Notes The Supreme Court s Subsequent Interpretation of the Commerce and Necessary and Proper Clauses United States v. Darby Notes [Assignment 26] The Modern Debate Wickard v. Filburn Notes Heart of Atlanta Motel v. United States Notes United States v. Lopez Notes [Assignment 27] In Closer Focus: The Commerce and Necessary and Proper Clauses Gonzales v. Raich Notes United States v. Comstock Notes [Assignment 28] In Closer Focus: The Necessary and Proper Clause and State Sovereignty

9 TABLE OF CONTENTS xv Garcia v. San Antonio Metropolitan Transit Authority Notes Printz, Sheriff/Coroner, Ravalli County, Montana v. United States Notes [Assignment 29] C. The Power to Tax Express Limits on the Power to Tax Hylton v. United States Notes Implied Limits on the Power to Tax? [Assignment 30] D. The Power to Spend The Spending Power The Assumption Controversy Two Views of the Spending Power: Madison and Hamilton James Madison, Veto Message on the Bonus Bill Alexander Hamilton, Report on Manufactures Notes The Savannah Fire Debate Notes Spending Litigation During the New Deal South Dakota v. Dole Notes [Assignments 31 32] E. Synthesis: The Commerce, Taxing, Spending, and Necessary and Proper Powers National Federation of Independent Business v. Sebelius Notes [Assignment 33] F. Other National Powers? Legal Tender Knox v. Lee Notes Expulsion of Aliens Fong Yue Ting v. United States Notes [Assignment 34] G. The Treaty-Executing Power Missouri v. Holland Reid v. Covert Notes Medellín v. Texas Notes [Assignment 35] II. Article IV: Federalism and the Relationship of the States to Each Other and to the Nation A Map of Article IV A. Prelude: Slavery in the Constitution The Quaker Anti-Slavery Petitions of

10 xvi TABLE OF CONTENTS The Petition of the Quakers of Pennsylvania, New Jersey, and Other States The Petition of the Pennsylvania Society for Promoting the Abolition of Slavery Slave Trade Debates Slave Trade Debates: Report of the Special Committee Slave Trade Debates: Report of the Committee of the Whole House Notes [Assignment 36] B. The Full Faith and Credit and Privileges and Immunities Clauses Lemmon v. The People Notes C. The Fugitive Slave and Fugitive Extradition Clauses Prigg v. Pennsylvania Notes [Assignment 37] D. The Territories Clause, the New States Admission Clause, and Citizenship Dred Scott v. Sandford Notes [Assignment 38] E. The Guarantee Clause: Secession, Reconstruction, and Representation Abraham Lincoln, First Inaugural Address Notes Texas v. White Notes [Assignment 39] Representation and Republicanism Baker v. Carr Notes Reynolds v. Sims Notes Vieth v. Jubelirer Notes Chapter 4. The Amendment Process [Assignment 40] I. A Perfect Problem II. The Riddles of Article V PART 2. RIGHTS AGAINST THE GOVERNMENT Chapter 5. The Bill of Rights [Assignment 41] A Short History of the Bill of Rights The English Bill of Rights of Did the Bill of Rights Bind the States?

11 TABLE OF CONTENTS xvii Barron v. Baltimore Notes [Assignment 42] I. The First Amendment and Freedom of Speech A Map of the First Amendment A. Background and Drafting History William Blackstone on the Liberty of the Press Cato s Letter No. 15, Of Freedom of Speech: That the same is inseparable from publick Liberty Cato s Letter No. 38, The Right and Capacity of the People to Judge of Government Notes Demands for First Amendment Protections James Madison s Initial Proposal for the Freedoms of Speech, Press, Assembly, and Petition Debate on Speech, Press, Assembly, and Petition House Draft Transmitted to the Senate B. Early Controversies and Interpretation The Democratic-Republican Clubs Controversy George Washington, Letter to Burgess Ball Debate on Self-Created Societies [Assignment 43] C. Freedom of the Press New York Times Co. v. Sullivan Notes New York Times Co. v. United States [The Pentagon Papers Case] Notes Branzburg v. Hayes Notes [Assignment 44] D. The Rise and Fall of Categorical Exceptions Chaplinsky v. New Hampshire Notes Categorical Content-Based Exclusions from First Amendment Protection Brown v. Entertainment Merchants Association Notes [Assignment 45] E. Content-Based and Content-Neutral Restrictions United States v. O Brien Notes Texas v. Johnson Notes Reasonable, Neutral Time, Place, and Manner Regulations Renton v. Playtime Theaters Notes [Assignment 46] F. Incitement, Subversive Advocacy, and Threats

12 xviii TABLE OF CONTENTS A Historical Introduction to Incitement, Subversive Advocacy, and Speech Urging Violation of the Law A Note on Holder v. Humanitarian Law Project Brandenburg v. Ohio Notes A Note on Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists R.A.V. v. St. Paul Notes Nazis in Skokie [Assignment 47] G. Offensive and Degrading Speech Cohen v. California Notes Hustler Magazine v. Falwell Notes American Booksellers Association v. Hudnut Notes [Assignment 48] H. Commercial Speech Valentine v. Chrestensen Notes Alex Kozinski & Stuart Banner, The Anti-History and Pre-History of Commercial Speech Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Notes A Note on the Central Hudson Test Liquormart, Inc. v. Rhode Island Notes A Note on Cincinnati v. Discovery Network [Assignment 49] I. Campaign Finance Buckley v. Valeo Notes Nixon v. Shrink Missouri Government PAC Citizens United v. Federal Election Commission Notes A Note on the Implications of Citizens United [Assignment 50] J. Public Forum Doctrine Commonwealth v. Davis Hague v. CIO Notes Perry Education Association v. Perry Local Educators Association Notes Rosenberger v. Rector and Visitors of University of Virginia Notes

13 TABLE OF CONTENTS xix [Assignment 51] K. Protests and Demonstrations Thomas v. Chicago Park District Notes Clark v. Community for Creative Non-Violence Notes NAACP v. Claiborne Hardware Co Notes A Note on Abortion Clinic Protests [Assignment 52] L. Compelled Speech Minersville School District v. Gobitis Notes West Virginia State Board of Education v. Barnette Notes Wooley v. Maynard Notes The Right of Groups to Control Their Own Expressive Messages Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston Notes Abood v. Detroit Board of Education [Assignment 53] M. Collective Expression: Groups and the Freedom of Expressive Association Democratic Party of United States v. Wisconsin Notes Roberts v. United States Jaycees Boy Scouts of America v. Dale Notes A Note on Christian Legal Society v. Martinez [Assignment 54] II. The First Amendment and Freedom of Religion A. Background and Drafting History James Madison, Memorial and Remonstrance Against Religious Assessments Notes James Madison s Initial Proposal for the Religion Clauses Debate on Establishment of Religion and Rights of Conscience House Draft Transmitted to the Senate Senate Motions Notes B. The Free Exercise Clause Stansbury v. Marks Notes Wisconsin v. Yoder [Assignment 55] Employment Division v. Smith Notes

14 xx TABLE OF CONTENTS Free Exercise After Smith Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC Notes The Florist, the Baker, the Candlestick Maker [Assignment 56] C. The Establishment Clause Engel v. Vitale Notes Town of Greece v. Galloway Notes D. Accommodation of Religion: The Intersection of Free Exercise and Non-Establishment Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos Notes Cutter v. Wilkinson Notes [Assignment 57] In Closer Focus: Financial Aid to Religious Activities Everson v. Board of Education Notes Lemon v. Kurtzman Notes Cases After Lemon Zelman v. Simmons-Harris Notes [Assignment 58] Rosenberger v. Rector and Visitors of University of Virginia Notes Locke v. Davey Notes [Assignment 59] III. The Second and Third Amendments The Federalist No The Federalist No District of Columbia v. Heller Notes [Assignment 60] IV. Criminal and Civil Proceedings: The Fourth, Fifth, Sixth, Seventh, and Eighth Amendments The Fourth Amendment Kyllo v. United States Notes The Fifth Amendment Miranda v. Arizona Notes A Note on Other Fifth Amendment Rights The Sixth Amendment

15 TABLE OF CONTENTS xxi A Note on Other Sixth Amendment Rights The Seventh Amendment The Eighth Amendment [Assignment 61] V. The Takings Clause What Is a Taking of Property for a Public Use? Pennsylvania Coal Co. v. Mahon Notes What Is a Taking of Property for a Public Use? What Is a Taking of Property for a Public Use? Kelo v. New London Notes VI. The Ninth and Tenth Amendments The Ninth Amendment The Tenth Amendment Chapter 6. The Reconstruction Amendments [Assignment 62] I. Foundations of the Thirteenth and Fourteenth Amendments A. Slavery, Natural Law, and the Antebellum Constitution Somerset v. Stewart Notes The Northwest Ordinance, Article VI Notes Alexander Stephens, African Slavery: The Corner-Stone of the Southern Confederacy Notes Frederick Douglass, The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery? Notes William Lloyd Garrison, The American Union Notes Dred Scott v. Sandford Notes B. The Thirteenth Amendment [Assignment 63] C. The Fourteenth Amendment The Congressional Response The Civil Rights Act of William Lawrence, Speech on the Civil Rights Act of Notes A Bill to Declare and Protect All the Privileges and Immunities of Citizens of the United States in the Several States Notes Drafting a New Amendment The Text Debate and Ratification Thaddeus Stevens, Speech Presenting the Proposed Amendment in the U.S. House

16 xxii TABLE OF CONTENTS Jacob Howard, Presenting the Proposed Amendment to the U.S. Senate Schuyler Colfax on the Proposed Amendment Benjamin Butler on the Proposed Amendment Notes [Assignment 64] D. The Early Cases Slaughter-House Cases Notes Strauder v. West Virginia Notes [Assignment 65] E. Congress s Power to Enforce the Reconstruction Amendments The Civil Rights Cases Notes United States v. Morrison Notes City of Boerne v. Flores Notes [Assignment 66] II. Equal Protection of the Laws A. The Segregation Cases Railroad Company v. Brown Plessy v. Ferguson Notes Cumming v. Board of Education Notes Berea College v. Kentucky Notes [Assignment 67] B. The Desegregation Cases Brown v. Board of Education (Brown I) Notes Bolling v. Sharpe Notes [Assignment 68] Brown v. Board of Education (Brown II) Notes A Note on Browder v. Gayle Loving v. Virginia Notes A Note on Busing [Assignment 69] C. Discriminatory Intent and Disparate Impact Yick Wo v. Hopkins Notes Washington v. Davis Notes

17 TABLE OF CONTENTS xxiii [Assignment 70] D. Affirmative Action A Note on the History of Affirmative Action Affirmative Action in Education: An Introductory Hypothetical (Taxman v. Piscataway) Regents of the University of California v. Bakke Notes [Assignment 71] Affirmative Action in Government Contracts and Licenses Adarand Constructors, Inc. v. Pena Notes [Assignment 72] E. Sex Discrimination The Nineteenth Century Bradwell v. Illinois Minor v. Happersett Notes [Assignment 73] The Twentieth Century Craig v. Boren Notes United States v. Virginia Notes [Assignment 74] F. Race, Sex, and... What Else? Other Classifications Under the Equal Protection Clause The General Rule of Rational Basis The Heightened Scrutiny Exceptions Buck v. Bell Notes Kotch v. Board of River Port Pilot Commissioners for Port of New Orleans A Note on City of Cleburne and Suspect Classifications Other Suspect Classifications? A Note on the Fundamental Interests Strand of Equal Protection Doctrine [Assignment 75] III. Due Process of Law A. Due Process and Separation of Powers St. George Tucker on Due Process Joseph Story on Due Process Murray s Lessee v. Hoboken Land & Improvement Co Notes Calder v. Bull Notes Mathews v. Eldridge Notes

18 xxiv TABLE OF CONTENTS [Assignment 76] B. Incorporation Hurtado v. California Notes McDonald v. City of Chicago Notes [Assignment 77] C. The Rise of Substantive Due Process Lochner v. New York Notes Meyer v. Nebraska Pierce v. Society of Sisters Notes [Assignment 78] D. The Fall and Rising Again of Substantive Due Process Franklin Delano Roosevelt, Fireside Chat on the Reorganization of the Judiciary A Note on West Coast Hotel and the Interring of Lochner Griswold v. Connecticut Notes [Assignment 79] E. Abortion Roe v. Wade Notes [Assignment 80] Planned Parenthood v. Casey Notes [Assignment 81] F. Limiting Principles? Washington v. Glucksberg Notes A Note on Bowers v. Hardwick Lawrence v. Texas Notes [Assignment 82] G. Same-Sex Marriage Obergefell v. Hodges Notes [Assignment 83] IV. The Fifteenth Amendment Giles v. Harris Notes Shaw v. Reno Notes APPENDIX ARTICLES OF CONFEDERATION INDEX