This is a discussion course focusing on Supreme Court cases since the Civil War and Reconstruction (1861-1877). It is a history class, not a law course, but students will learn a good deal about constitutional law as well as about the history of Supreme Court decisions.
Through the Civil War, the Supreme Court used the commerce, contract, and necessary and proper clauses of the Constitution to strengthen the government and provide a basis for economic development. Constitutionally, the effort failed, and Civil War followed. In this course, we will explore the post-Civil War transformation of constitutional government created by (1) the challenge to federalism and localism by the growth of an integrated national economy: and (2) by the passage of the 14th Amendment. The 14th amendment has been at the center of a struggle between an ever more powerful national government and those using the judicial process to protect the rights of individuals. We will discuss briefly the revolutionary implications of the 13th and 14th Amendments (especially for African Americans), then look at the subsequent use of the 14th Amendment to limit government regulation of private economic rights ("substantive due process"). This transformation of the 14th Amendment from a narrowly crafted amendment concerned with protecting newly freed slaves to a broadly constructed provision of the Constitution to protect property interests is one of the most crucial stories in constitutional history. We will then explore the battle over civil liberties during WWI, which again will involve the 14th Amendment (the "extension" of the "Bill of Rights" to protect individuals from the actions of State governments as well as the Federal government). During the Great Depression (1929-1941) and the New Deal (1933-1941), the Federal government took extraordinary steps to revive and reform the economy. These challenged older 14th Amendment notions of individual economic freedom ("substantive due process") and extended federal commerce and taxing power (concerns from before the Civil War). We will next look at the extension of the Bill of Rights protections during the post-WWII era (freedom of and from religion, the death penalty, free speech, civil rights, women's rights), and the conservative retrenchment of the court since the 1970s. Students will have the opportunity to argue one or more cases in moot court situations -- free speech, freedom of religion, abortion, affirmative action, the death penalty -- and to research a major constitutional case.
The course will be graded on three exams (there is no final exam), quizzes on the readings, a research paper on a specific case that the student and professor will select, moot court and class discussion. Discussion is not extra credit; it is required and students receive a specific grade for the quality of their participation. Attendance is required. After the third absence, the final grade is lowered one letter grade; six absences result in failure (religious holidays excepted; documented medical, family, or court emergencies are also excepted). Students who have perfect attendance (excused absences excepted) will receive a bonus on the third exam (enough to increase the grade one "step", for example, from a B- to a B). In general, we follow the procedures outlined in the history policies on mutual responsibilities and classroom etiquette. (Or consult: http://history.rutgers.edu/undergrad/policy.htm).
There is a photocopying fee of $5 that will be collected at the first examination.
Readings (University Bookstore and New Jersey Books):
Stanley Kutler, ed., The Supreme Court and the Constitution: Readings in American Constitutional History. (3rd edition, Norton, 1984). This is your text. The book includes edited versions of cases through the early 1980s; for cases after that date we will use the internet and handouts. The great advantage of a casebook is that it provides background headnotes and edited versions of the opinions -- the internet is not a substitute for this, although you are always welcome to read the entire case on LexisNexis Acadmic (see below). Amazon.com has some used copies at a significant discount, but make sure you get the third edition. ISBN: 0-393-95437-4.
Harold M. Hyman, The Reconstruction Justice of Salmon P. Chase: In Re Turner & Texas v. White (University of Kansas Press, 1997). Two early cases that dealt with the revolutionary aspects of the 13th and 14th Amendments to the Constitution. Amazon.com price $16.95. ISBN: 0-7006-0835-4
Geoffrey R. Stone War and Liberty: An American
Dilemma 1790 to the Present (Norton,
is an abridged edition of the prize winning study by Stone, Perilous
Times: Free Speech
from the Sedition Act of 1798 to the War on Terrorism (Norton, 2004). You may buy either, but I have only
ordered the former. Amazon.com price $8.07.
Mark Tushnet, A
Divided: The Rehnquist
the Future of Constitutional Law (Norton,
2005). The best treatment of the modern court, which illustrates
its contentious decision making on key issues -- abortion, gay rights,
affirmative action, freedom of expression, the taking of private
property for "public" use. barnesandnoble.com price $15.95. ISBN:
Peter Charles Hoffer, WilliamJames Hull Hoffer, and N.E. H. Hull, The Supreme Court: An Essential History (University Press of Kansas, 2007). Still only in hardcover, but $23.07 on Amazon.com. Organized by Supreme Court Chief Justices -- each court gets a separate chapter (Waite Court, Warren Court, Rehnquist Court etc.). An excellent survey and exceptionally useful as a reference tool and for background. ISBN 978-0-7006-1538-4
Sept. 2 (Tu) Introduction: Contested Meanings--14th Amendment/Free Speech
Sept. 4 (Th) 14th Amendment: Slaughter-House Cases
(K225) and Munn v. Illinois (K242). Hyman, Salmon P. Chase,
Case source: Full Text of Slaughter-House Cases 83 US 36 (1873)
Recommended: Hoffer, Supreme Court, Chapter 5 - Chase Court, 1864-1873
Sept. 9 (Tu) Liberty of Contract: Lochner v. New York (K282)
and Powell v. Pennsylvania (handout). Hyman, Salmon P. Chase, 54-106.
Case source: Full Text of Powell v. Pennsylvania, 127 US 678 (1887)
Recommended: Hoffer, Supreme Court, Chapter 6 - Waite Court, 1874-1888
Sept 11 (Th) Commerce Clause Regulation: Wabash (K247 and
handout), ICC (K258), and Shreveport (K264 and handout), Hyman, Salmon P. Chase, 107-169.
Case source: Full Text of Wabash v. Illinois
Case source: Dissent in Wabash...v. Illinois
Case source: Full Text of Shreveport Rate Case
Recommended: Hoffer, Supreme Court, Chapter 7 - Fuller Court, 1888-1910
Sept. 23 (Tu) World War I, Free Speech, and
Law (handout). Stone, War and Liberty, Chapter
Recommended: Hoffer, Supreme Court, Chapter 8 - White Court, 1910-1921 [same as Sept 16th].
Sept. 25 (Th) EXAMINATION # 1
Sept. 30 (Tu) Clear and Present
Schenck (K324), Gitlow (K330), Whitney (333) and Near (486)
Case source: Full Text of Whitney v. People of the State of California.
Oct. 2 (Th): Abrams -- MOOT
Case source: Full Text of Abrams v. United States
Oct. 7 (Tu): Great Depression: Blaisdell (K365),
Nebbia (K369), Schechter (K373) and Butler (K382)
Research OUTLINE Due.
Hoffer, Supreme Court,
Chapter 10 - Hughes Court, 1930-1941
Oct. 14 (Tu): Cold War Civil Liberties: Dennis (K429); Yates (K436); Stone, War and Liberty, Chapters IV and V.
Quiz on War and Liberty
Oct. 16 (Th): Warren Court
Revolution: Civil Rights Plessy (K216) and Brown (K548).
Recommended: Hoffer, Supreme Court, Chapter 12 - Vinson Court, 1946-1952
Oct. 21 (Tu): Warren Court Revolution: Due Process
Mapp (K615), Gideon (K622)
Recommended: Hoffer, Supreme Court, Chapter 13 - Warren Court, 1953-1969
Oct. 23 (Th): EXAMINATION #2
Oct. 28 (Tu) MOOT COURT: Gregg
v. Georgia (K640)
- death penalty
Case source: Full Text of Gregg v. Georgia
Oct. 30 (Th): Warren
Freedom Of and From Religion James Madison
Virginia Board of Education v. Barnette (K511),
Everson (K520), Engel (K528)
Nov. 4 (Tu): MOOT COURT: Zelman
Case source: Full Text of Zelman v. Simmons-Harris.
Nov. 6 (Th): Warren Court Revolution: Privacy -- Griswold (K645)
Nov. 13 (Th): Burger Court Counter-Revolution?: MOOT COURT: Roe v.
Case source: Full text of Roe v. Wade
Research Paper DRAFT due. Happy Thanksgiving - November 27th
Nov. 18 (Tu): Burger Court Counter Revolution?: Swann
(K560), Bakke (K688))
Case source: Full text of Bakke v. Regents of the University of California
Recommended: Hoffer, Supreme Court, Chapter 14 - Burger Court, 1969-1986
Case Source: Full text of TVA v. Hill
Nov. 25 (Tu on Th Schedule): Burger Court Counter Revolution? Rights of Women: Reed (K679), Frontiero (K683). Tushnet, A Court Divided, 104-129. 204-222..
Happy Thanksgiving - November 27th
Dec. 2 (Tu/Th schedule): Court Divided (Rehnquest
Court) Affirmative Action, MOOT COURT - Grutter
Bollinger (handout) -- Michigan Law School Affirmative Action Case.
Tushnet, A Court Divided, 13-48, 223-248.
Case Source: Full text of Grutter v. Bollinger
Research Paper Due
Dec. 9 (Tu): Court Divided: 2nd Amendment:
District of Columbia v. Heller (handout). Tushnet, A Court Divided, 130-155.
Stone, War and Liberty,
A moot court is a reenactment in your own words of the oral arguments presented to the Supreme Court. In each case, you will be divided into two groups-one for each side in the case. Each student will have one of three roles; he/she will (1) provide a concise opening statement that identifies the participants, sets the context, defines the issue, and summarizes the argument; (2) present the argument in the case in a logical, persuasive manner; or (3) respond to the other side's argument with rebuttal statements or questions. Students will each have about five minutes to speak (but "the court" may interrupt and ask questions). Both sides must briefly present the relevant facts in the case and explain logically, drawing on precedent, how the case ought to be resolved. The entire class will have an opportunity to ask questions at the conclusion of the presentation. Students may work from note cards, but they may not read their presentations from a prepared statement.
A. Muller v. Oregon, 208 US 412 (1908)--protectionist legislation for women workers challenged as violation of liberty of contract.
B. Abrams v. United States, 250 US 616 (1919)--freedom to speak in opposition to American involvement in World War One.
C.. Gregg v. Georgia, 428 US 153 (1976)--death penalty.
D. Zelman v. Simmons-Harris 536 US 639 (2002)--Ohio school voucher program challenged on establishment clause (1st Amendment) grounds. Opinion and briefs available through LexisNexus. Opinion also available from Findlaw.com.
E. Grutter v. Bollinger, 539 US 306 (2003) -- constitutionality of the Michigan Law School admissions program that considers race, among other factors, in accepting students for law school. Students should also review Regents of the University of California v. Bakke, 418 US 265 (1978) in preparing to argue this case.
F. Roe v. Wade, 410 US 113 (1973)--abortion rights.
Supreme Court Case on the
A. Using LexisNexis Academic through the Rutgers Library (you must connect from a Rutgers account or on a Rutgers terminal)
1. Go to the Library homepage
2. From the Right Column, Select "Find Articles"
3. Select "Indexes and Databases" and Go to The "L" listings
4. Select LexisNexis Academic and connect.
5. Select "Legal" from the tab near the left, top of the page.
6. Select ""Federal and State Cases" from the list on the left.
7. You have several search options. If you want to search for cases on a topic, then you can put in topical words in the "search terms" box, but unless you limit your search in some way, this may pull up too many results. Your other choices:
"Sources" --: the default will search both federal and state cases. Best to limit this to Federal cases or to briefs from Federal cases, depending on what you want.
"Case Name" or "Citation Number" -- the best way to find a specific case. If you are searching for Briefs, use the "Case Name" (names of the parties) only.
"Dates" -- allows you to further limit your search, and particularly important if you are only searching using topics.
"Judges Last Name" -- valuable if you are trying to study a particular judge, but this will pull up many, many opinions that you do not want.
8. Select search.
Note: try putting in "snail" "darter", limit the search to Jan. 1,
1975 to Jan. 1, 1980, and try "Federal and State Cases, Combined" and
then "U.S. Supreme Court Cases, Lawyers' Edition." For the first,
you should get seventeen cases; for the latter two. If you were
looking for TVA v. Hill, the
first search would give you too many choices; the second not enough (as
there were several relevant decisions made about the case, all under
the name TVA v. Hill, or Hill v. TVA.) You
will not find the case briefs on LexisNexis, but you can check the
published Landmark Briefs series (see below) in the Government
Documents section of the Library for 1978 to see if they are there.
Unlike LexisNexis this search engine is available over the internet without a Rutgers subscription. Findlaw also allows you to search by case citation
But the site is not user friendly, at least not for students doing research. Go to the findlaw home page at: http://www.findlaw.com/. Click on "visit our professional site" in the upper right-hand corner. Half-way down the page, there is a heading "BROWSE BY CASES, CODES, ARTICLES" and under that you can click on "U.S. Supreme Court." Once there you can search by volume and page number (citation - the default search selection) of a case -- the standard way cases are listed. For example, you can look for 341 US 494 (1951), the Dennis case involving the leaders of the United States Communist Party, if you know the volume number (341) and the number of the first page of the opinion (494). You can also search by the name of the party (Dennis and U.S.) and by keywords (fulltext search). You may be asked to register to use this cite -- it is your choice whether to do so. Most of the links provided on this syllabus are to the Findlaw pages -- again you may be asked to register when using the links.Finding the New York Times on the Internet: