Reading List: History 336


For each of the following, there is a week starting date, the topics we will cover in lecture and discussion, and what readings you should have completed by the end of the week.  All the supplemental readings are available on the Internet, at the specified web page address.  For each reading, I’ve given you a hint of what you should think about as you read these documents.


8/25: What Is A Constitution?  The Notion of Organic Law.  The Rights of Englishmen.


Text: Chapter 1


Coke’s Petition of Right (1628):

What is Coke’s notion of “rights” with respect to the government of England?


English Bill of Rights (1689):

What does this Bill of Rights restrict or limit?  Where do rights come from?  How old are they?


Blackstone’s Commentaries on the Laws of England (1765), Book One, Chapter One, “Of The Absolute Rights Of Individuals”:

What are the rights of individuals under English law?  Where does Blackstone claim that these rights come from?  What is surprising about these notions of rights from a modern perspective?


9/1: Colonial Governments and Constitution Making


Text: Chapter 2


Mayflower Compact (1620):

What does this compact require of every freeman?  What does it guarantee him?


The Constitution of Plymouth Colony (1636):

How does this constitution differ from the Mayflower Compact?  How does its list of rights match up to rights we take for granted today?  How does it compare to Blackstone’s list from last week?


Fundamental Orders of Connecticut (1639):

How does this constitution differ from Plymouth’s?


9/8: The Emergence of Federalist Ideology Within the Empire


Text: Chapter 3


Proclamation of 1763:

Why did the British Government limit the colonists from moving westward?  What does this proclamation say about the relationship between Britain and the colonists?


The Rights of the British Colonies Asserted and Proved (1763): 

What is the purpose of government to James Otis?  What is the origin of legitimate governmental authority?


William Pitt’s Speech Before Parliament Concerning the Stamp Act (1766):

What is Pitt’s view of governmental authority over the American colonies?  Is he arguing for his position based on a principle, or based on what is in the interests of the British Empire?


Declaratory Act of 1766: 

What is the Declaratory Act asserting?


Administration of Justice Act (1774):

What is the effect of this Act?  What assumptions does it make about the authority of Parliament relative to the colonies?


9/15: The Constitution & The Struggle Over a National Government


Text: Chapter 4


U.S. Constitution:

What are the methods by which different forces are balanced and checked?  What does the structure of the Constitution tell us about the assumptions of the Framers?


The Federalist 10:

What does Madison believe is the cause of faction in government?  How does he claim that the new Constitution will solve this problem?  Was he right?


The Federalist 46:

Why does Madison have confidence that the new national government won’t become tyrannical?  What assumptions does Madison make about the population of the United States?


9/22: The Bill of Rights & Party Struggle in the First Decade


Text: Chapter 5


First Amendment:

What do you think that Congress meant by “Congress shall make no law respecting an establishment of religion”?  How do you square this with the quotations at


The Sedition Act:

What sort of reasoning do you think Federalists used to justify this law, in light of the First Amendment’s statement that “Congress shall make no law …  abridging the freedom of speech, or of the press”?


Second Amendment:

What does this amendment do?  What changes (if any) did it make to the powers of the federal or state governments? 


Third Amendment:

What does the lack of judicial exploration of this amendment tell us about how farseeing the Framers were?


Fourth and Fifth Amendments: and

In what way is the language of these amendments different (more vaguely worded) than the First and Second Amendments?  What is fundamentally different about these amendments?  What lessons did the Framers draw from the power of the British government in America?


9/29: Judicial Review, Interstate Commerce, and States Rights


Text: Chapters 6-7


Marbury v. Madison (1803):

What does this case say about the limits of Congressional authority? 


Barron v. Baltimore (1833):

How does this case lead to the need for the 14th Amendment?


Nunn v. State (Ga. 1846):

How did the Georgia Supreme Court deal with the question raised in Barron?  Why did they not follow Barron?  Do you see any inconsistency between this decision’s uses of “right of the people” and rights of “citizens”?


10/6: Slavery & The Civil War


Text: Chapters 8-9


Ely v. Thompson and Cooper and Worsham are big files.  If you are on a dialup connection, you won’t want to download these.  Let me know if you need me to bring in photocopies.


Ely v. Thompson (Ky. 1820):

How does the Kentucky Supreme Court deal with the conflict between “not parties to our compact” and the evident injustice of this law?


State v. Newsom (N.C. 1844):

How does the North Carolina Supreme Court deal with the question of a black person’s right to keep and bear arms, under both the federal and state constitutions?  Do you find their claims about the intentions of the writers of the North Carolina Constitution persuasive?  Why, or why not?


Cooper and Worsham v. City of Savannah (Ga. 1848):

Do the Georgia Supreme Court’s distinctions between “people” and “citizens” in Nunn v. State (Ga. 1846) that we read last week suddenly make a lot more sense after reading this decision?


10/13: Reconstruction & Laissez Faire


Text: Chapter 10


Mid-Term: 10/17


In Re Slaughter-House Cases (1872):

This is a very long case, but important to read and understand.  How did the Court deal with the question of what “privileges and immunities” means?  Does it seem logical that this clause meant only equal protection for citizens of other states, or does it seem more logical that “privileges and immunities” was intended to protect the rights of citizens from their own state governments?


U.S. v. Cruikshank (1875):

Not quite as long a case.  Do you find persuasive the claim that the 14th Amendment only imposed protections for rights associated with national citizenship?


10/20: The Gilded Age


Text: Chapter 11


Reynolds v. U.S. (1878):

There’s a lot of material in this case about procedural issues (size of grand jury, challenges of jurors) that isn’t relevant.  Skip over it, and concentrate on the question of whether federal laws prohibiting polygamy are a violation of the First Amendment religion clauses.   Do you find the argument concerning the prevention of patriarchy persuasive?  Are there are methods by which the Court could have upheld this statute that would not involve preference for mainstream Judeo-Christian ideas of marriage?


10/27: Progressive Era & The Jazz Age


Text: Chapters 12-13


Lochner v. New York (1905):

What was the reasoning behind the Court striking down New York’s labor law?  Can you see any way the law could have been written so that the Court’s argument would not have applied?  Do you think this decision was written because of its impact on self-employed bakers, or for some other reason?


Plessy v. Ferguson (1896):

What was the Court’s position concerning freedom of contract with respect to laws prohibiting interracial marriage?  Did the Court show a similar interest in laissez faire for railroads (required by the law to discriminate based on race) that it showed in laissez faire for bakers in Lochner?


11/3: The New Deal


Text: Chapter 14


Morehead v. People of State of New York (1936):


West Coast Hotel Co. v. Parrish (1937):

Compare this to the Court’s Morehead decision of the previous year.  What explains the changing view of freedom of contract, especially compared to Lochner?  Did the Constitution change?  Or did the view of the Supreme Court change about the merits of such laws?


Wickard v. Filburn (1942):

What is the government’s argument for why Congress had authority to regulate the amount of wheat Filburn could sell?  Could a similar theory be used to limit the number of hours that you were allowed to be self-employed?  Why, or why not?


11/10: Liberal Constitutionalism & The Warren Court


Text: Chapter 15


Palko v. Connecticut (1937):

What is the Court’s argument as to how a guarantee of the Bill of Rights is incorporated through the Fourteenth Amendment?


New York Times Co. v. Sullivan (1964):

What is the consequence of this change in libel law?  Why did the jury impose such a dramatic judgment for such minor factual errors?  Can you imagine some reasons why the Court decided to broaden the protections for free speech?  Why didn’t the Court simply reduce the amount of libel judgment commensurate with the level of damage the ad did to Sullivan’s reputation?


Griswold v. Connecticut (1965):

What right does this decision recognize?  Is this right of privacy general, or specific to a married couple?  Why?  What constitutional provisions provide this protection?


Roe v. Wade (1973):

What does the enormous number of concurring opinions tell you about the perceived significance of this case?  Does this opinion overturn all state laws prohibiting abortion?  What inconsistencies can you find between the claim that it was not as serious a crime as murder at common law, and the assertion, “At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.”  On what basis does this opinion create the distinctions based on how advanced the pregnancy is?  From what constitutional principles or historical evidence does the decision make these distinctions?  Considering the special position that Blackstone’s Commentaries had in forming American legal opinion, should it be given special weight in understanding original intent?


11/17: Civil Rights Movement


Text: Chapter 16


Missouri ex rel. Gaines v. Canada (1938):

Why didn’t the “separate but equal” excuse work here?  If Lincoln University had a law school, would the Supreme Court have accepted that as a “separate but equal” law school?


Sweatt v. Painter (1950):

Why didn’t “separate but equal” work in this case?  How much of the problem was an unequal law school, and how much was that the schools were separate?


Shelley v. Kraemer (1948):

What basis did the Court use to strike down a racially restrictive covenant?  What other forms of judicial enforcement does a state engage in that could be argued as racially restrictive?  How does the question of “separate but equal” fit into this case?


Loving v. Virginia (1967):

Virginia argued that its miscegenation statute did not violate equal protection, because the interracial marriage ban applied equally to both white and black.  Is this claim within the letter of the Fourteenth Amendment, but outside its spirit?  How would you figure out what the Fourteenth Amendment’s authors intended?


11/24: Limiting Presidential Power (Thanksgiving Week)


Text: Chapter 17


Research Paper Due


12/1: The Libertarian & Conservative Challenge


Text: Chapter 18


Lemon v. Kurtzman (1971):

How did this opinion understand the meaning of “respecting an establishment of religion”?  Does the fact that the schools that took advantage of these supplemental programs were overwhelmingly associated with a church mean that non-religious schools were prohibited from participating in these programs?  Should a program that is neutral in its treatment of both secular and religious bodies be invalidated simply because religious bodies take advantage of the program?  Do the arguments based on the religious orientation of the teachers argue that the state paying salaries of public school teachers with an antireligious orientation is a violation of the First Amendment?


Rosenberger v. University Of Virginia (1995):

How did the university attempt to justify excluding a religious student organization from funding, while funding other student organizations?  What principles of free speech and equal protection did the Court apply to this case?


12/8: Conservative Constitutionalism


Text: Chapter 19


U.S. v. Lopez (1995):

What was Congress’s justification for the Gun-Free Safe School Zones Act of 1990?  Why did the Supreme Court find this argument unpersuasive?  On what basis the Court strike down the federal law?


Printz v. U.S. (1997):

On what basis did the Court strike down this federal law?  Why does Justice Thomas file a concurring opinion?  What’s the provision on which he suggests that this law might also be found unconstitutional?  What is the rationale for Justice Stevens’s dissent?