Professor Paul G. E. Clemens

Office: Van Dyck 217B


Tuesday-Thursday 4th Period (1:10-2:30) 

Murray 213

James Madison

This is a discussion course. We will explore the origins of the Constitution and analyze the many early 19th-century debates that involved constitutional issues. Several topics will receive special attention: the ideology of the American Revolution; the framing of the Constitution; the Bill of Rights; Madison & and Hamilton as constitutional thinkers; the Marshall and Taney courts; and the coming of the Civil War; the meaning of the 14th Amendment.
           The course is divided into three parts. The first third builds toward a class reenactment of the Philadelphia Constitutional Convention of 1787. Groups of students will represent each of the states at the convention.  Second, we investigate how the Supreme Court under Chief Justices Marshall and Taney helped shape the American experiment in republican government. The Charles River Bridge case will be argued in a moot court situation. Third, we will reenactment the 1850-1854 debate over the constitutionality of Congressional control of slavery in the federal territories.
          As in every 400-level history course, you must write a research paper.  You will have three choices -- to work on the state ratification debates over the Constitution; to explore New Jersey appellate cases from before 1900; or to look at a Supreme Court case, not discussed in class, from the period up to 1877.   In each case, students will work in pairs and construct their analysis together, but focus on different documents or cases. Grades for the course will be based on the paper, short written assignments on the books and documents, three exams, and class discussion.  Two of the three exams will involve writing opinions in hypothetical cases set in the past; the other will focus on the Constitutional Convention.  All three exams will be open book.  Class discussion is not "extra credit"; it will be graded and the grade will count in the final grade. Regular attendance is expected and required. More than three excused absences will lower your grade; six unexcused absences will result in failure. There is no final exam in the course.  Students receive extra credit for perfect attendance.
        Documents will be available on a Sakai site. but see below for options on obtaining these documents.  We will refer to the documents repeatedly in class discussion.  

Required Readings (available from the Rutgers Bookstore, New Jersey Books (at their new store on Easton Avenue), or on-line):

Bernard Bailyn, Origins of American Politics (Vintage, 1970)  ISBN: 978-0394708652. price $6.72

R. Kent Newmeyer, The Supreme Court Under Marshall and Taney (Harlan Davidson, 2006) ISBN: 978-0882952413. price  $16.95

William Edward Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review (Kansas, 2000)  ISBN: 978-0700610624 price:  $7.61.

Paul Finkelman, ed., Dred Scott v. Sandford: A Brief History with Documents  (Bedford/St. Martin's, 1997).  ISBN: 978-0312115944. price     $12.04.

Recommended Readings

Stanley Kutler, The Supreme Court and the Constitution: Readings in American Constitutional History (Norton, 1984) ISBN: 978-0393954371 price $34.38 (check used copies)  - why recommended? -- this is the best edited edition of Supreme Court opinions.  I will post most of these on Sakai but you will probably find this easier to use for class discussion and open-book exams than print outs of the court opinions.

Herman Belz, The American Constitution: Its Origins and Development, Volume 1  (Norton, 1991)  ISBN: 978-0393960563. price $33.97. -- why recommended? -- this is the classic two-volume history of American constitutional development.  I will make optional assignments in it and it is a wonderful reference tool if you are serious about American history or the law

We will also be referencing James Madison's "Notes of Debates in the Federal Convention of 1787."  There are many used editions of this available on-line, the best the single volume edited by Adrienne Koch.  I will be using both Sakai and an independent web site for these notes:    but you might wish to own a copy of this classic debate.  I have bnot ordered this through the bookstore.

Documents for the Course:

1. Option 1: You can download most of the required documents (in pdf format) from the course Sakai site.  Many of them are also available as html documents from links on this web page.  These can be copied and pasted into standard word processing programs.  The debates at the Philadelphia convention, however, you will have to access through one of two web sites (both linked below) or by purchasing an edition of Madison's Notes.

2. Option 2: if you wish, I can provide you a set of documents for the course.  This will not include the documents for the Philadelphia Convention or the Kansas-Nebraska debate -- these must be accessed on Sakai and/or the web sites mentioned below.  You will get the pamphlets and essays we will use in the first part of the course and the edited court cases we will use in the second half of the case.  The cost is 10 cents/page, and the documents will be distributed one or two classes ahead of the class in which they are needed.  Total cost, due in the third week, is $9.00.  Unless you have access to free printing, this is probably less expensive than printing the documents out for your yourself.  You do NOT have to purchase these documents from me -- they are available on Sakai -- but this is a convenience that some of you may wish to have.  You will still need to use the web site(s) for the Constitutional debate or purchase Madison's Notes.


Note: Supreme Court cases in the Kutler case book are listed by the page on which they begin. Thus "SCC, 21" means read the entire case beginning on page 21.  Most of you will simply get the case from the Sakai site or have it distributed to you if you have purchased the document package.

Date Topic Assignment

1. Jan. 19: Introduction: The Law & Property

2. Jan. 21: John Locke: Law and Property

Handout: Locke on Property

Handout: Cato's Letters

3. Jan. 26: Republican Ideology 4. Jan.28: Declaration of Independence 5. Feb. 2: Early American Politics
         Bailyn, Origins of American Politics, Chapter 3

6. Feb. 4: Constitution Debate: Executive   (Recommended: Koch, pp. 24-67).   Note: This link takes you to a protected site where you will find documents about the convention and some of the debates.  You will need to use this site, but may also find it useful to use the site below which contains the full debates.  The Sakai site contains information about who the delegates were and the specific issues they debated.  It will also include a listing of your assignment in the debate.   If you want a printable copy of the delegates (useful in reading through the debates), follow link to: Philadelphia Convention delegates.

          (Note: Koch, Notes, also can be used to access the actual debates.)

7. Feb 9: Constitution Debate: Representation  (Recommended Koch, pp. 67-114) 

                                                              8. Feb. 11: Bill of Rights

John Marshall     Handout: Madison on Religion      Handout: Madison on the Need for a Bill of Rights

  9. Feb. 16: Madison: 10th Federalist

10. Feb. 18  Examination         11. Feb. 23: Hamilton: Energy & Necessity 12. Feb. 25: Role of the Judiciary           Martin v. Hunter's Lessee (SCC, 36)
          Nelson, Marbury v. Madison, Chapters 4-5

13. Mar. 2: Power of the National Government           Handout:  Spencer Roane (Virginia) on Supreme Court Review of State Court decisions.
          Handout:  Amphictyon Essay attacking McCulloch decision.

14. Mar. 4: Court Powers (continued)

          Newmyer, Supreme Court under Marshall and Taney, Chapter Three

15. Mar. 9: Contract Clause

16. Mar. 11:  Examination

Spring Break (March 13-March 21)

17. Mar. 23: Commerce Clause 18. Mar. 25: Positive State           Newmyer, Supreme Court under Marshall and Taney, Chapter Four

19. Mar. 30: Commerce: Taney

           New York v. Miln (SCC, 126)  
           Passenger Cases  (SCC, 130)
Roger Taney20. Apr. 1: Contracts: Taney

          Charles River Bridge v. Warren Bridge (SCC,114)  Moot Court: Charles River Bridge Case.
          Dodge v. Woolsey (SCC, 124).

21. Apr. 6: Slavery:  -  The Armistad Case (1841) - film and assignment
22. Apr. 8: Commerce: Taney

          Cooley v. Board of Wardens of the Port of Philadelphia  (SCC, 135)

23. Apr. 13: Slavery in the Territories

        Dred Scott, Part I
24. Apr.15: Examination

25. Apr. 20: Dred Scott Decision

       Dred Scott, Part II (pp. 55-126)
       Nelson, Marbury v. Madison, Chapters 7 and 9.

26. Apr. 22:  Kansas-Nebraska Debate - Students Role Play  and documents available on Sakai.   

27. Apr. 27: Lincoln-Douglas Debate  

28. Apr. 29: 14th Amendment 

                    See also the Drafts of the 14th Amendment (and the Congressional Debate, February 27, 1866, on Sakai site).

Research Paper Assignment

Every student must do a research paper.  These papers should be 8-12 pages in length, and must deal with one of the three general topics below.  In each case, I will try to pair you with another student who will be doing a parallel but distinct aspect of the same topic, and you will be encouraged to work with that student in developing your paper (although the final draft must be your own).  The paper will go through the stages, each with a specific "due date," listed below; the first "due date" will be the selection of a paper topic by    

Schedule of Assignment Dates for Paper:

Class 5 (Feb. 2nd): Have selected a tropic (one of the three below) and specified the (A) state ratification debate, (B) issue in New Jersey law, or (C) Supreme Court case you wish to research.  .

Class 11 (Feb. 23rd):  Provide one-page photocopy of (A) key document in ratification debate; (B) first-page of decision by New Jersey appellate court or from state with which you are comparing New Jersey; (C) brief from one side of the Supreme Court case.

Class 20 (April 1st): Turn in a one-page statement that concisely summarizes the argument on both sides of the issue or case.  Cite the documents you are using on both sides of the debate or case.  You, or you and your partner, may be called upon to discuss with the class what you have uncovered.  This will be graded for clarity and completeness and count 20% of the final paper grade.  If it comes in late, it will be marked down one letter grade.  Those doing the moot court debate that day will have an additional class period to complete this part of the assignment.

Class 24 (April 15th): Provide a rough draft of the paper of no more than five pages long.  The introduction should explain why the issue or case was important.  The body of the paper should explain the arguments made by both sides; and the conclusion should explain why you believe the arguments were more persuasive on one side than the other, and how the historical period in which the issue/case arose may have affected the outcome..

Class 26 (April 22nd): Analysis returned; students edit before resubmitting.

Class 28 (April 29th): Submit final paper, can be up to 8-12 pages but NOT LONGER.

(A) Topic One:  Debates over the Ratification of the Constitution.   After the Philadelphia Convention of 1787 concluded, the newly drafted Constitution was sent to the thirteen states for ratification by conventions of "the people" in each state.  In most states, there was a vigorous political debate between the supporters of ratification (the Federalists) and those opposed or who wanted amendments (anti-Federalists).  Debate was carried on initially in newspaper essays and correspondence, then in the ratification conventions themselves.  Paired with a second student, your paper should explore the arguments and language used by the proponents and opponents of ratification.  You can split the analysis between proponents and opponents, or each paper can look at those on both sides as they spoke on different issues (for example, the need for a bill of rights, the nature of representation, the fear of executive tyranny, etc).  
    The Library owns the multi-volume Documentary History of the Ratification of the Constitution, edited by Merrill Jensen, et al., 1976-   .  The call number is KF4502.D63, followed by a volume number.  Most of these volumes deal with ratification debates in individual states, and among the states covered to date (this in an on-going project) are Pennsylvania (vol. 2); Delaware, New Jersey, Georgia, Connecticut (vol. 3);  Massachusetts (vol. 4-7);  Virginia (vol. 8-10);  New York (vol. 19-23).   The remaining state volumes have not yet been published.  The Pennsylvania, Connecticut, Massachusetts, Virginia, and New York collections are ideally suited for a paper.   The records are lengthy, but well indexed so you can focus on differences of opinion relatively easily.  The study need not be exhaustive, but it needs to use multiple sources to clarify what was at stake in the debate, and the political terminology people at that time used to address the issues.  (These are issues we will fully and carefully discuss ias we reenact the 1787 Philadelphia Convention, so you should be well grounded in the issues and language before you begin to investigate the state debate.)

(B)  Topic Two: New Jersey State Law.  In the 19th century, state appellate courts handed down most of the important legal decisions.  These decisions applied traditional English common law to the conditions of a new country, now no longer tied directly to Great Britain.  The most significant decisions generally dealt with economic issues, as judges sought to shape and respond to the rapidly changing commercial economy of the early 19th century, but there were also changes in criminal law, laws governing the family, and other areas of the law.  
    In your paper, you and one other student will compare a major state law opinion(s) from New Jersey with a similar opinion(s) from another state in the period from the 1780s to 1860.  You may each take a different state (New Jersey and a second state of your choice), or you may each take a separate issue and compare the two states treatment of that issue.
    Appellate court opinions (as well as law journal articles from the past, and many other legal sources) are available through the Westlaw database.  This database can be accessed through the Rutgers Library webpage by following these steps::  

1.     Go to the Rutgers Library website:
         If not at a campus terminal, you can log in at the upper left corner of the screen by following the link.  You must do this to use the database below.
2.     Point at "Find Articles" on the right, and then select "Indexes and Databases"  link.
3.     Click on the "W" from the alphabetical list at the bottom on the screen, and then click on "Westlaw Campus Research"
4.     Click on "Connect"  (You'll only be able to do this if you are at a campus terminal or have logged in.)
5.     Click on "Law" on the bar slightly below the top of the page.
6.     You can now do a search.  Try putting in some key words in the search spaces.  Under "Dates," use the drop down menu, pick "between," and enter two years to limit your search (for example, 1790 and 1820, or 1820 and 1860); and from "Cases," check (click) "State Cases" and from the drop-down menu, select "New Jersey."   You can obviously modify these as you begin to focus in on a good subject for comparison.

    Possible topics: (search words):  abortion, apprenticeship, counterfeit, divorce, fornication, fraud, insanity, insolvent debtor, manumission, mill dam, murder, negligence, slave(s), treason, waste, water course

(C)  Arguments before the Early Supreme Court.  Before a case is argued at the appellate level, lawyers customarily submitted "briefs" to the court outlining the arguments that would be made.   These briefs, plus the majority and dissenting opinions (if any), can be used to examine the constitutional and policy issues in a case.  Your paper should explore the issues in the case, the arguments made on both sides of the case, how the court resolved the issues, and what the consequences of the decisions were or were presumed to be for society more generally.  The case must be one that we haven't discussed in the class.
      The cases themselves can be found through Westlaw, discussed above.  The briefs, if not in Westlaw, are in the published volumes of the Landmark Briefs series in the government documents section of Alexander Library.  You'll find about 200 volumes of briefs (in red binding) in Stack 28 of the Government Documents area on the 1st floor of Alexander Library.  The volumes are arranged chronologically.   The most likely cases include:

Ware v. Hylton (1796)
Osborn v. Bank of the United States (1824)
Brown v. Maryland (1827)
Shanks v. Dupont (1830) - no briefs, but a dissenting opinion.
Swift v. Tyson (1842)
West River Bridge Co. v. Dix (1848)
Luther v. Borden (1849)
Murray's Lessee v. Hoboken (1856)

Updated December 16, 2009