Sem Syllabus 2010

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					                       Law 980 Seminar: American Constitutional History:

       The Origins of the Constitution and the Bill of Rights
Professor David N. Mayer                   (2 credit hours)                                  Fall 2010


DESCRIPTION

        The seminar examines the historical origins of the United States Constitution and the Bill of
Rights. We will begin with some common background readings, to be discussed in class the first
few weeks of the semester, covering such topics as: early American constitutional thought, the
Articles of Confederation, the Constitutional Convention of 1787, the ratification debate, the
drafting and ratification of the Bill of Rights, and constitutional politics of the 1790s. Each
participant in the seminar will be assigned a provision of the Constitution as a topic for research, an
in-class presentation, and the seminar paper. After various specific provisions are discussed in turn,
the seminar will conclude with a discussion of the Constitution as a whole and the relevance of
historical inquiry to contemporary problems in constitutional law and interpretation.


TEXTS

To Be Purchased at the Bookstore:

DANIEL A. FARBER AND SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION 2d ed.
(2005) [hereafter, "HISTORY"]


Placed on Reserve in the Library:

THE FOUNDERS' CONSTITUTION (Philip B. Kurland and Ralph Lerner eds., 5 vols. [hereafter,
        "FOUNDERS' CONST."]
        (also available online at http://press-pubs.uchicago.edu/founders/ )
THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed., rev. ed.), 4 vols.
        [hereafter, "Farrand"]
THE BILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING (Eugene W. Hickok, Jr.,
        ed.) [hereafter, “Hickok”]
LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS (1999) [hereafter, “L. LEVY”]
JAMES MADISON, NOTES ON DEBATES IN THE CONSTITUTIONAL CONVENTION [hereafter,
        "Madison"]
THE ROOTS OF THE BILL OF RIGHTS (Bernard Schwartz ed.) , 5 vols. [hereafter, "Schwartz"]
DOCUMENTS OF AMERICAN CONSTITUTIONAL AND LEGAL HISTORY (Melvin I. Urofsky ed.), 2 vols.
 [hereafter, "Urofsky"]

(Various other materials may be placed on reserve in the library. From time to time, additional
photocopied materials may be handed out in class.)
                                                                    2

CLASS MEETINGS AND INDIVIDUAL CONFERENCES

Regular attendance and participation in seminar meetings is expected and, as noted below, shall be
taken into account in determining the final grade for the seminar.

In addition, everyone must schedule a conference with Professor Mayer approximately one week
prior to the date of his/her in-class presentation, to review a draft outline for the presentation.
Everyone should also schedule a follow-up conference, as soon after the in-class presentation as
possible. The follow-up conference is designed to provide feedback on the presentation, to review
the class discussion, and to provide guidance on further work on the topic for the final paper.


GRADING

The grading scheme for the seminar reflects, as directly as possible, the format planned for the
seminar. Everyone will be assigned as a specialized topic one of the provisions of the U.S.
Constitution, to research, present a report on in the appropriate class, and to write a seminar paper
about. Although the preparation of a paper--including the preparation of an outline, to serve as the
framework for the in-class discussion--comprises the bulk of the work that will be evaluated in
determining the final grade for the seminar, everyone is also expected to prepare for (by reviewing
the "general readings" assigned for each class meeting, listed below), attend, and participate in the
discussion of every meeting of the seminar. The exact percentage weights are as follows:


Seminar paper (final draft) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    80%

In-class presentation, including written outline (2-5 pages) . . . . . . . . . . . . . . . . .         10%

Class participation, generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     10%
                                                                                                       ____
                                                                                                      100%

GUIDELINES FOR SEMINAR PAPERS

1. The paper should be written generally in the form of a law review article, with appropriate
citations to sources. It must address the basic problem of the history (its origin, meaning, and
interpretation by the courts) of a particular provision (or provisions) in the Constitution and should
objectively analyze the problem, advancing a meaningful thesis. Some research beyond the course
materials (including the suggested readings listed below for each topic) is expected.

2. To avoid plagiarism, it is essential that use of another's form of expression--either by quoting or
paraphrasing--or original ideas be acknowledged by properly citing the source.
                                                   3

GUIDELINES FOR SEMINAR PAPERS, continued

3. The paper must comply with the following requirements as to length and form:

   a. Typewritten (double-spaced) on 8 1/2" x 11" paper, 1" margin all around, with type size no
smaller than 12-pitch (12 cpi). (Note: The paper does not have to be printed on rule-lined thesis
paper; ordinary white paper is sufficient.)

   b. Quotations exceeding four lines must be indented and single-spaced.

  c. Papers must be at least 20 pages, but no more than 30 pages, in length, excluding footnotes.
Suggested length is 20-25 pages.

   d. Footnotes may either appear at the bottom of the pages or as endnotes following the paper.
(For ease in counting pages, endnotes are preferred.)

   e. Citations should follow consistently THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (18th
ed. 2005), following the basic citation form for law review articles, including the rules for typeface
conventions (except that ordinary roman type--with or without underlining, as appropriate--may be
used in lieu of italics or large & small capitals).

    f. The cover page must contain the following information: (1) the student's name, (2) the title of
the paper, (3) the name of the faculty member supervising the work (Professor Mayer), (4) the name
of the course (Seminar in American Constitutional History: Origins of the Constitution and Bill of
Rights), and (5) the date of submission.

4. A rough draft of the paper may be submitted at any time during the first two weeks of
November, and should be submitted by mid-November, to allow time for Prof. Mayer to return the
draft with comments before the Thanksgiving break.

5. Papers will be graded according to the following criteria, in approximate order of descending
importance: legal/historical analysis (including identification of problems in interpreting the
sources, understanding of the issues involved, and use of sources, including the resolution of
conflicts in interpretation); research (thoroughness in the discovery of relevant sources, both
primary and secondary); organization; writing and style.

6. The final draft of the paper must be submitted to Professor Mayer's office no later than 12 noon
on Saturday, December 4, 2010, the first date of final examinations. Earlier submission of the
paper is encouraged.
                                                  4

TOPICS AND ASSIGNMENTS

       NOTE: Everyone should read the materials assigned for each "General Topic." The
"Specialized Topics" materials are assigned only to the student(s) working on those topics and
making a presentation at that particular meeting; they are optional to everyone else. Other
materials, from time to time, will be handed out in class.


                                           General Topics


Topic 1        Introduction; The English Background

Discussion of the seminar requirements and syllabus; introduction to historical research and
analysis; overview of the Constitution and the Bill of Rights and of specific provisions to be
covered in the seminar; the American colonial experience and "rights of Englishmen"

Readings
      HISTORY, pp. xvii-xx and Appendix A, pp. 553-71 (A Note on Sources, and Constitution of
      the United States)


Topic 2        The Intellectual Origins of the Constitution

Readings
      HISTORY, Chapter One, pp. 3-25
      David N. Mayer, The English Radical Whig Origins of American Constitutionalism, 70
      WASH. U. L.Q. 131 (1992) (handout)


Topic 3        The Revolutionary Experience and the Articles of Confederation

Readings
      HISTORY, Chapter Two, to p. 31
      The Declaration of Independence (1776) (handout)
      The Articles of Confederation (1781) (handout)
      Excerpts from early state constitutions (handout)


Topic 4        The Constitutional Convention

Readings
      HISTORY, rest of Chapter Two, Chapters Three, Four and Five, pp. 31-205, and
      Appendix B, pp. 573-601 (Drafts of the Constitution)
                                                  5

Topic 5        The Ratification Struggle: Federalists vs. Antifederalists

Readings
      HISTORY, Chapter Seven, pp. 249-312



Topic 6        The Addition of the Bill of Rights

Readings
      HISTORY, Chapter Eight, pp. 313-51, and Appendix C, pp. 603-08 (Drafts of the Bill of
      Rights)



Topic 7        Constitutional Politics in the Federalist Era: The Debate over the Sedition Act
               and the First Amendment Free Speech/Press Clause as a Test Case

Readings
      Alien and Sedition Acts (1798) (handout)
      Excerpts from FOUNDERS' CONST.: Blackstone's Commentaries, Kentucky Resolutions
      of 1798 and 1799, Virginia Resolutions of 1798, and Report of the Minority on
      the Virginia Resolutions (handout)
      Responses of other states to Virginia and Kentucky Resolutions (1799) (handout)
      Leonard W. Levy, Liberty and the First Amendment: 1790-1800, in LEVY,
      CONSTITUTIONAL OPINIONS: ASPECTS OF THE BILL OF RIGHTS 162-70 (1986)
      (handout)




                                         Specialized Topics


Topic 8        Congressional Power to Tax: Direct vs. Indirect Taxes
               (Article I, section 2, clause 3; Article I, section 8, clause 1; and Article I,
               section 9, clause 4)

Primary Sources
       FOUNDERS' CONST., vol. 2, pp. 86-144, 407-470 (relevant parts)
       FOUNDERS' CONST., vol. 3, pp. 354-65
       Hylton v. United States, 3 Dall. 171 (1796), in Urofsky, vol. 1, pp. 153-57
       Pollock v. Farmers' Loan and Trust Co., 158 U.S. 601 (1895), in Urofsky, vol. 2, pp.
              23-27
                                               6

Topic 8       Congressional Power to Tax: Direct vs. Indirect Taxes, continued

Secondary Sources
      DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED
             YEARS, 1789-1888 (1985) (relevant part of Chapter 2)
      OWEN M. FISS, TROUBLED BEGINNINGS OF THE MODERN STATE, 1888-1910 [Vol. VIII
             of the Oliver Wendell Holmes Devise History of the Supreme Court] (1993)
             (Chapter 4, "Pollock--The Redistributive Function Denied")
      Erik M. Jensen, The Apportionment of "Direct Taxes": Are Consumption Taxes
             Unconstitutional? 97 COLUM. L. REV. 2334 (1997)
      DAVID E. KYVIG, EXPLICIT & AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-
             1995, 193-208 (1996)
      David Brinkley, “The Long Road to Tax Reform,” Wall Street Journal, September
             18, 1995 [see Professor Mayer for a copy of this op-ed]



Topic 9       Congressional Power to Tax: The "General Welfare" Phrase
              (Article I, section 8, clause 1)

Primary Sources
       FOUNDERS' CONST., vol. 2, pp. 407-470 (relevant parts)
       Thomas Jefferson and Alexander Hamilton, Opinions on the Constitutionality of a National
              Bank (1791), in Urofsky, vol. 1, pp. 132-40
       Helvering v. Davis, 301 U.S. 619 (1937)
       Stewart Machine Co. v. Davis, 301 U.S. 548 (1937), in Urofsky, vol. 2, pp. 196-97
       United States v. Butler, 297 U.S. 1 (1936), in Urofsky, vol. 2, pp. 166-71

Secondary Sources
      Randy E. Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. PA. J.
             OF CONST’L LAW 183 (2003)
      David E. Engdahl, The Spending Power, 44 DUKE L. J. 1 (1994)
      ROBERT LEVY & WILLIAM MELLOR, THE DIRTY DOZEN: HOW TWELVE SUPREME COURT
             CASES RADICALLY EXPANDED GOVERNMENT AND ERODED FREEDOM (2008), pp.
             19-36 (Chapter 1, on Helvering v. Davis)
      DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON (1994), pp.
             191-92, 198-99, 204, 220
      "General Welfare" in THE OXFORD COMPANION TO THE SUPREME COURT OF THE
             UNITED STATES (Kermit L. Hall ed., 1992)
                                                 7

Topic 10       Congressional Power to Regulate Commerce (Article I, section 8)

Primary Sources
       FOUNDERS' CONST., vol. 2, pp. 477-528

Secondary Sources
      United States v. Darby, 312 U.S. 100 (1941), in Urofsky, vol. 2, pp. 198-201
      Wickard v. Filburn, 317 U.S. 111 (1942), in Urofsky, vol. 2, pp. 202-205
      United States v. Lopez, 514 U.S. 549, 583 (1995) (Thomas, J., concurring)
      Randy Barnett, The Original Meaning of the Commerce Clause, 68 U. CHI. L. REV. 101
              (2001)
      Jim Chen, “The Story of Wickard v. Filburn,” in CONSTITUTIONAL LAW STORIES (Michael
              C. Dorf ed., 2004), pp. 69-118 (chapter 3)
      E. S. CORWIN, THE COMMERCE POWER VERSUS STATES RIGHTS (1936)
      DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED
              YEARS, 1789-1888 (1985)
      LEVY & MELLOR, THE DIRTY DOZEN, pp. 37-49 (Chapter 2, focusing on Wickard v.
              Filburn)
      David N. Mayer, Justice Clarence Thomas and the Supreme Court's Rediscovery of the
              Tenth Amendment, 25 CAPITAL U. L. REV. 339 (1996)
      R. KENT NEWMEYER, THE SUPREME COURT UNDER MARSHALL AND TANEY (1968)




Topic 11       The Power to Raise and Support Armies (Article I, section 8, clause 12)

Primary Sources
       FOUNDERS' CONST., vol. 3, pp. 122-166
       Abraham Lincoln, on the Constitutionality of Draft (1863), in Urofsky, vol. 1, pp. 482-
               86
       Selective Draft Law Cases, 245 U.S. 366 (1918)

Secondary Sources
      Henry Mark Holzer and Phyllis Holzer, The Constitution and the Draft, 6 THE
              OBJECTIVIST 346-51, 361-66 (1967)
      Note, Women and the Draft: The Constitutionality of All-Male Registration, 94 HARV.
              L. REV. 406 (1980)
      Ilya Somin, “The Civil War Draft and the Constitutionality of Mandatory National
      Service Under the Thirteenth Amendment,” essay posted on the Volokh Conspiracy blog,
      Sept. 24, 2007:
      http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190686947
                                                 8

Topic 12      Congressional Power to Declare War vs. President's Power as Commander-in-
       Chief (Article I, section 8, clause 11; Article II, section 2, clause 1)

Primary Sources
       FOUNDERS' CONST., vol. 3, pp. 92-121
       FOUNDERS' CONST., vol. 4, pp. 1-28 (relevant parts)
       "Pacificus" and "Helvidius" essays in Urofsky, vol. 1, pp. 142-49
       The Prize Cases, 2 Black 635 (1863), in Urofsky, vol. 1, pp. 462-68
       War Powers Act, 87 Statutes at Large 55 (1973), in Urofsky, vol. 2, pp. 448-51

Secondary Sources
      David P. Currie, Rumors of Wars: Presidential and Congressional War Powers, 1809-
             1829, 67 U. CHI. L. REV. 1 (2000)
      Lofgren, War-Making Under the Constitution: The Original Understanding, 81 YALE L.
             J. 672 (1972)
      LOUIS FISHER, PRESIDENTIAL WAR POWER (1995)
      DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON (1994), pp.
             242-44
      Ronald Rotunda, The War Powers Act in Perspective, 2 MICH. L. & POL'Y REV. 1
             (1992)
      Symposium on the War Powers, 70 U. COLO. L. REV. 1169- (1999)
      Symposium on the War Powers, 47 CASE W. RES. L. REV. 1231- (1997)
      F. WORMUTH AND E. FIRMAGE, TO CHAIN THE DOG OF WAR: THE POWERS OF
             CONGRESS IN HISTORY AND LAW (1986)
      John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding
             of War Powers, 84 CALIF. L. REV. 167 (1996)


Topic 13       First Amendment Religion Clause

Primary Sources
       FOUNDERS' CONST., vol. 5, pp. 43-111
       Engel v. Vitale, 370 U.S. 424 (1962), in Urofsky, vol. 2, pp. 306-10
       Wallace v. Jaffrey, 472 U.S. 38 (1985), in Urofsky, vol. 2, pp. 347-50

Secondary Sources
      John S. Baker, The Establishment Clause as Intended, and Michael W. McConnell ,
             Free Exercise as the Framers Understood It, in Hickok, pp. 41-69
      THOMAS J. CURRY, THE FIRST FREEDOMS: CHURCH AND STATE IN AMERICA TO THE
             PASSAGE OF THE FIRST AMENDMENT (1986)
      PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE (2002)
      MARCI HAMILTON, GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW (2005)
      LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE: RELIGION AND THE FIRST
             AMENDMENT (1986)
                                                 9

Topic 13       First Amendment Religion Clause, continued

Secondary Sources, continued
      DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 158-66 (1994)
      RODNEY K. SMITH, PUBLIC PRAYER AND THE CONSTITUTION (1987)
      STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE
             OF RELIGIOUS FREEDOM (1995)
      MELVIN I. UROFSKY, THE CONTINUITY OF CHANGE: THE SUPREME COURT AND
             INDIVIDUAL LIBERTIES, 1953-1986 (1991) (Chapters 2 and 3)



Topic 14       First Amendment Assembly and Petition Clauses

Primary Sources
       FOUNDERS' CONST., vol. 5, pp. 186-208
       Schwartz, vol. 1, pp. 221-23 (Address to the Inhabitants of Quebec [1774])

Secondary Sources
      Stephen A. Higginson, A Short History of the Right to Petition, 96 YALE L. J. 142
             (1986)
      Gary Lawson & Guy Seidman, Downsizing the Right of Petition, 93 NW. U. L. REV. 739
             (1999)
      WILLIAM LEE MILLER, ARGUING ABOUT SLAVERY: JOHN QUINCY ADAMS AND THE GREAT
             BATTLE IN THE UNITED STATES CONGRESS (1995)
      JOHN PHILIP REID, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: THE
             AUTHORITY OF RIGHTS (1986)
      Norman B. Smith, "Shall Make No Law Abridging...: An Analysis of the Neglected,
             Nearly Absolute, Right of Petition, 54 U. CINN. L. REV. 1153 (1986)



Topic 15       Second Amendment

Primary Sources
       FOUNDERS' CONST., vol. 5, pp. 209-14
       (See also relevant parts of FOUNDERS' CONST., vol. 3, pp. 203-16 (Militia))
       United States v. Miller, 307 U.S. 174 (1939)
       District of Columbia v. Heller, 554 U.S. ___, 128 S. Ct. 2783 (2008)

Secondary Sources
      SAUL CORNELL, A WELL-REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS
             OF GUN CONTROL IN AMERICA (2006)
                                              10

Topic 15      Second Amendment, continued

Secondary Sources, continued
      CLAYTON E. CRAMER, ARMED AMERICA (2006)
      CLAYTON E. CRAMER, FOR THE DEFENSE OF THEMSELVES AND THE STATE: THE
             ORIGINAL INTENT AND JUDICIAL INTERPRETATION OF THE RIGHT TO KEEP AND
             BEAR ARMS (1994)
      BRIAN DOHERTY, GUN CONTROL ON TRIAL: INSIDE THE SUPREME COURT BATTLE OVER THE
      SECOND AMENDMENT (2008)
      GUN CONTROL AND THE CONSTITUTION: SOURCES AND EXPLORATIONS ON THE SECOND
             AMENDMENT (Robert J. Control ed., 1994)
      STEPHEN P. HALBROOK, THE FOUNDERS’ SECOND AMENDMENT: ORIGINS OF THE RIGHT TO
             BEAR ARMS (2008)
      Stephen P. Halbrook, The Original Understanding of the Second Amendment, and Don
             B. Kates, Jr., Minimalist Interpretation of the Second Amendment, in Hickok, pp.
             117-147
      JOYCE L. MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-
             AMERICAN RIGHT (1994)



Topic 16      Third and Fourth Amendments

Primary Sources
       FOUNDERS' CONST., vol. 5, pp. 215-44

Secondary Sources
      AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998),
              Chapters Three and Four
      Tom W. Bell, The Third Amendment: Forgotten But Not Gone, 2 WILLIAM & MARY BILL
              OF RIGHTS J. 117 (1993)
      LEONARD W. LEVY, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION (1988),
              Chapter 11 (The Fourth Amendment: Search and Seizure)
      William S. Fields, The Third Amendment: Constitutional Protection from the
              Involuntary Quartering of Soldiers, 124 MIL. L. REV. 195 (1989)
      William Cuddihy and B. C. Hardy, A Man's House Was Not His Castle: Origins of the
              Fourth Amendment to the United States Constitution, WILLIAM AND MARY
              QUARTERLY 3d ser. 37 (1980)
      A. Gildea & D. Weiler, Unreasonable Searches and Seizures, 26 AM. CRIM. L. REV.
              1397 (1989)
      J. Lobelson, The Warrant Clause, 26 AM. CRIM. L. REV. 1433 (1989)
      S. Wasserstrom, The Fourth Amendment's Two Clauses, 26 AM. CRIM. L. REV.
              1389 (1989)
                                                 11

Topic 17       Fifth Amendment Property Rights (Due Process and Takings clauses)

Primary Sources
       FOUNDERS' CONST., vol. 5, pp. 302-43
       Kelo v. City of New London, 545 U.S. 469 (2005)

Secondary Sources
      Roger Clegg, Reclaiming the Text of the Takings Clause, 46 S. C. L. REV. 531 (1995)
      Charles E. Cohen, Eminent Domain After Kelo v. City of New London: An Argument for
             Banning Economic Development Takings, 29 HARV. J. OF LAW & PUBLIC POLICY
             491 (2006)
      JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY
             OF PROPERTY RIGHTS (1992)
      RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT
             DOMAIN (1985)
      LEONARD W. LEVY, ORIGINS OF THE FIFTH AMENDMENT (1968)
      LEVY & MELLOR, THE DIRTY DOZEN, pp. 155-68 (Chapter 9, on Kelo)
      Note, The Origins and Original Significance of the Just Compensation Clause of the Fifth
             Amendment, 94 YALE L. J. 694 (1985)
      Robert E. Riggs, Substantive Due Process in 1791, 1990 WIS. L. REV. 941
      TIMOTHY SANDEFUR, CORNERSTONE OF LIBERTY: PROPERTY RIGHTS IN 21ST-CENTURY
             AMERICA (2006)
      HARRY N. Scheiber, The “Takings” Clause and the Fifth Amendment: Original Intent and
             Significance in American Legal Development, in Hickok, pp. 233-49
      BERNARD H. SIEGAN, PROPERTY AND FREEDOM: THE CONSTITUTION, THE COURTS, AND
             LAND-USE REGULATION (1997)
      FRANK R. STRONG, SUBSTANTIVE DUE PROCESS OF LAW: A DICHOTOMY OF SENSE AND
             NONSENSE (1986)
      Christopher Wolfe, The Original Meaning of the Due Process Clause, in Hickok, pp. 213-
             230



Topic 18       Fifth and Sixth Amendments (Criminal Process and Rights of the Accused)

Primary Sources
       FOUNDERS' CONST., vol. 5, pp. 245-302
       Trials for Treason Act, 7-8 William III, c. 3 (1696)

Secondary Sources
      L. Fulton, The Right to Counsel Clause of the Sixth Amendment, 26 AM. CRIM. L. REV.
              1599 (1989)
                                               12

Topic 18      Fifth and Sixth Amendments, continued

Secondary Sources, continued
      LEONARD W. LEVY, ORIGINS OF THE FIFTH AMENDMENT (1968)
      ANTHONY LEWIS, GIDEON’S TRUMPET (1964)
      K. Urick, The Right Against Compulsory Self-Incrimination in Early American Law, 20
              COLUM. HUM. RTS. L. REV. 107 (1988)
      Stacia Haynie, The Court’s Protection Against Self-Incrimination: Miranda v. Arizona, in
              CREATING CONSTITUTIONAL CHANGE: CLASHES OVER POWER AND LIBERTY IN THE
               SUPREME COURT (Gregg Ivers and Kevin T. McGuire eds., 2003)
      Y. Kamisar, A Dissent from the Miranda Dissents, 65 MICH. L. REV. 59 (1966)
      Ralph Rossum, “Self-Incrimination”: The Original Intent, in Hickok, pp. 273-87
      K. Urick, The Right Against Compulsory Self-Incrimination in Early American Law, 20
              COLUM. HUM. RTS. L. REV. 107 (1988)
      MELVIN I. UROFSKY, THE CONTINUITY OF CHANGE: THE SUPREME COURT AND
              INDIVIDUAL LIBERTIES, 1953-1986 (1991) (Part III, Chapters 7 and 8)




Topic 19      Sixth and Seventh Amendments (Jury Trials)

Primary Sources
       FOUNDERS' CONST., vol. 4, pp. 390-407, and vol. 5, pp. 343-67
       Granfinanciera v. Nordberg, 492 U.S. 33 (1989)


Secondary Sources
      AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998),
             Chapter Five
      Paul Carrington, The Seventh Amendment: Some Bicentennial Reflections, 1990
             U. CHI. LEGAL F. 33
      CLAY S. CONRAD, JURY NULLIFICATION: THE EVOLUTION OF A DOCTRINE (1998)
      Andrew Gildea, The Right to Trial by Jury, 26 AM. CRIM. L. REV. 1507 (1989)
      Edith G. Henderson, The Background of the Seventh Amendment, 80 HARV. L. REV. 289
             (1966)
      Stanton D. Krauss, An Inquiry into the Right of Criminal Juries to Determine the Law
             in Colonial America, 89 J. CRIM. L. & CRIMINOLOGY 111 (1998)
      Charles W. Wolfram, The Constitutional History of the Seventh Amendment, 57 MINN.
             L. REV. 639 (1973)
                                               13

Topic 20      Eighth Amendment

Primary Sources
       FOUNDERS' CONST., vol. 5, pp. 368-87
       CESARE BECCARIA, ON CRIMES AND PUNISHMENTS (1764)

Secondary Sources
      Raoul Berger, The Cruel and Unusual Punishments Clause, Jack Greenberg, Against the
             American System of Capital Punishment, and William Bradford Reynolds, The
             Death Penalty Is Not Cruel and Unusual Punishment, in THE BILL OF RIGHTS:
             ORIGINAL MEANING AND CURRENT UNDERSTANDING 303-330 (Eugene W. Hickok,
             Jr. ed. 1991)
      Robert Dunham, The Cruel and Unusual Punishment and Excessive Fines Clauses, 26
             AM. CRIM. L. REV. 1617 (1989)
      Anthony F. Granucci, "Nor Cruel and Unusual Punishments Inflicted": The Original
             Meaning, 57 CALIF. L. REV. 839 (1969)



Topic 21      Ninth Amendment

Primary Sources
       FOUNDERS' CONST., vol. 5, pp. 388-400
       Calder v. Bull, 3 Dall. 380 (1798)


Secondary Sources
      THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH
             AMENDMENT, 2 vols. (Randy E. Barnett ed., 1989, 1993)
      RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY
             (2004)
      Randy E. Barnett, Reconceiving the Ninth Amendment, 74 CORNELL L. REV. 1 (1988)
      R. Barnett, ed., Symposium on Interpreting the Ninth Amendment, 64 CHI.-KENT L. REV.
             37-268 (1988)
      Russell L. Caplan, The History and Meaning of the Ninth Amendment, 69 VA. L. REV.
             223 (1983)
      KURT T. LASH, THE LOST HISTORY OF THE NINTH AMENDMENT (2009)
      Thomas B. McAffee, The Original Meaning of the Ninth Amendment, 90 COLUMBIA L.
             REV. 1215 (1990)
      Suzanna Sherry, The Founders' Unwritten Constitution, 54 U. CHI. L. REV. 1127 (1987)
                                                14

Topic 22       Tenth Amendment

Primary Sources
       FOUNDERS' CONST., vol. 5, pp. 400-407
       Urofsky, vol. 1, pp. 132-140 (Jefferson's and Hamilton's opinions on the bank bill)

Secondary Sources
      Eugene W. Hickok, Jr, The Original Understanding of the Tenth Amendment, in THE
             BILL OF RIGHTS: ORIGINAL MEANING AND CURRENT UNDERSTANDING 455-64
             (Eugene W. Hickok, Jr. ed. 1991)
      DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON (1994),
             Chapter 7
      David N. Mayer, Justice Clarence Thomas and the Supreme Court's Rediscovery of the
             Tenth Amendment, 25 CAPITAL U. L. REV. 339 (1996)
      G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835
             (1988)




                                    General Topics, continued


Topic 23       Constitutional Interpretation and the Problem of "Original Intent"

General Readings
       HISTORY, Introduction to Part Three and Chapter Fourteen, pp. 489-91 and 525-52
       Brennan and Meese essays on "Construing the Constitution" (1985) (handout)
       Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOYOLA L. REV. 611 (1999)
                                               15

       Law 980 Seminar: Am. Const'l History: Origins of the Constitution and Bill of Rights

Professor David N. Mayer                                                Fall 2010
______________________________________________________________________________

                             Tentative Schedule of Class Meetings

Thurs. Aug. 26       Introduction and Overview of Seminar; Topic 1 (English Background)

Thurs. Sept. 2       Topic 2: Intellectual Origins

Thurs. Sept. 9       Topic 3: Revolutionary Experience and the Articles of Confederation

Thurs. Sept. 16      Topic 4: The Constitutional Convention

Thurs. Sept. 23      Topic 4: The Constitutional Convention, continued

Thurs. Sept. 30      Topic 5: The Ratification Struggle

Thurs. Oct. 7        Topic 6: The Bill of Rights

Thurs. Oct. 14       Topic 7: Constitutional Politics in the Federalist Era

Thurs. Oct. 21       NO CLASS (Prof. Mayer will be out of town)

Thurs. Oct. 28       Topics x, y & z:
                     Presentations (

Thurs. Nov. 4        Topics x, y & z:
                     Presentations (

Thurs. Nov. 11       Topics x, y & z:
                     Presentations (

Thurs. Nov. 18       Topics x, y & z:
                     Presentations (

Thurs. Nov. 25       THANKSGIVING DAY; NO CLASS


TUE. Nov.30          Topic 23: Constitutional Interpretation and "Original Intent" (General
                     Discussion); and Seminar Wrap-Up: Matters of Writing & Style,
                     Discussion of Final Drafts