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Constitutional Development I
Fall 2025

First a caveat: the order and content of each assignment may change throughout the semester. Content changes are most likely as we get toward the end of the semester. The Supreme Court may issue an opinion in some area we are studying. For instance, that opinion may overrule an assigned opinion or provide more clarity on the issues than the previous opinion. At least 2 weeks notice will be given for changes in order of assignments.

Cases and readings are denominated in 3 ways. First, those for which you should have a written brief are marked ‘brief’ next to case. Second, those that you should read and just know issue and holding are not marked. Third, those Dr. Sager will discuss are marked “Dr. Sager will discuss”.

In addition, cases in the online supplement and not in the text book are so marked. From time to time you may be asked to turn in some questions about the cases to be briefed for a particular day.

Your briefs should be on a written or printed page not on your computer. Recitation from your phone, ipad, computer etc will not be considered as being prepared. Recitation from memory will be fine. Assigned cases that are in the book are not otherwise noted on the schedule. Assigned cases on the publisher’s website for the Epstein and Walker are noted as being in the supplement. A few cases or topics can be reached by clicking the links in the schedule.

Most assigned cases have relatively simple fact situations, e.g. Congress or a state passed a law about this or that and someone claims it violates the constitution or some administrator did this or that and someone claims they had no power to do that.

Lastly, Dr. Sager will discuss some cases as noted. You should know the facts of these cases when you come to class that day. Knowing the facts means you can state in a couple of sentence who did what to whom and why the case got to court. Asterisked cases are in the supplement. Other cases he will cover are neither in the main text nor on the website containing supplemental cases. You can find the facts on the web. Previous student briefs for some of the later cases assigned are so noted on the website and you are welcome to use these. There are also assigned videos usually with a number associated with them. The videos are numbered on the video page. Not all of those videos are assigned. Some are there to provide additional context to the assigne

Again, check this page regularly for changes.

For sample briefs and a description of how to brief a case, go to the Syllabus page of the class website.

Class #1 Monday Monday August 25th

Introduction: Over the first two weeks read Epstein and Walker 1-63 (This is introductory material. Some of you may already know much of this from high school and/or basic government classes or other government classes. Read the Declaration of Independence and begin reading the Constitution. Both are available in the Arnn book. Watch video 6 a good
9 minute or so analysis of each part of the Declaration of Independence.

The Pre-Marshall and Marshall Courts 1787-1835
Property Rights and Transcendent Rights

1. Calder v. Bull(brief) (click here for case) Note: The Findlaw formatting for this case may have Justice Iredell’s name tucked in at the end of Justice Paterson’s opinion not heading his separate opinion (looks like this:”technical, which is also their common and general, acceptation, and are not to be understood in their literal sense. [3 U.S. 386, 398] ” Iredell, Justice.
Though I concur in the general result of the opinions, which have been delivered, I cannot entirely adopt the reasons that are assigned upon the occasion.”

Note: This is a pre-Marshall case, Each of the 4 Justices who heard the case wrote an opinion. This was called seriatim opinions. This was the way the highest court in England delivered its opinions. Supreme Court followed this procedure at its inception. It was not required by the Constitution or any federal law. Marshall started the custom of a single justice writing a majority opinion and attempting to get unanimous support. Those who disagreed could write a concurrence or dissent.
For some notes, on reading this case click here. Quotes about the Constitution which will be cited in Class 1 (click here)

2. Begin reading Arnn book, The Founder’s Key There may be references to it in this first class. We will include it more formally in our discussion by the 2nd class. The author has an interesting point of view and argument about the relationship between the Declaration of Independence and the Constitution. The first 20 pages or so of the book layout his basic argument. While Justices don’t directly write about that relationship, as we go through the semester, you will see a number of opinions that that don’t necessarily agree with this point of view or fundamentally disagree with it. As we go th

3. Read a brief summary of two fundamental notions of how to interpret the Constitution and what it might mean during the current Supreme Court term, by John Yoo a conservative writer, Berkeley law professor and former Bush Justice Department official. (click here). One writer calls this Originalism and Interpretivism. (He is also on list to cancelled by those who disagree with him.) These are just one set of many distinctions we will cover during this semester. A major way we learn is by creating distinctions. We will see many varieties of each of this two approaches. Be clear about this dichotomy from the start and be able to state it in your own words. We will also look at the distinctions called activism/restraint which can also be denominated as uphold holding a state policy versus striking down a state policy. A simple version of these is that activism is overruling the law, statute, act etc. of a legislative or administrative body versus restraint which is upholding these same actions. Always try to figure out the uphold vs strikedown side. This is a very important way to relate cases to each other over time.

At times there are two state parties in the Court and and one is one each side. We will be using these terms to compare the
the ebb and flow of Supreme Court opinions. These terms are
separate from conservative versus liberal judges and opinions. There are conservative activists and liberal restraintists as well as conservative restraintists and liberal activists.

4. Madison quote from Federalist 51:

“If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.”

What does this have to do with what we are doing in this course.

Class #2 Wednesday August 27th

The Taxing Power

2. Hylton v. U.S.(brief)(supplement)(Findlaw)
Issue in this case relates to what is a direct versus
and indirect tax, proportionate versus uniform taxes and
what taxing power is given to Congress under the
Constitution as of 1787? If you don’t have supplement
yet click here for full text about 10 pages. Make sure you understand
distinction between a direct and an indirect tax.

2a. Chisholm v. Georgia(Brief)(supplement)
(Note this case came even earlier than Calder and really was not a Marshall Court case. It is a pre-Marshall Court case so it has what are called
seriatim opinions) Per our class discussion of Justice Cushings opinion: here is the text I have found for the case. It looks like there is a Court Reporters error or someone else’s error(click here)

Judicial Review
3. Marbury v. Madison (brief)(click here for Section 13 of the Judiciary Act which Marshall held unconstitutional)

View Video: Marbury v. Madison.
For Joel Grossman’s excellent analysis on the 200th Anniversary of
Marbury(click here) Note Grossman’s question at the end written in 2004 and may be answered in several ways by the end of this course. Also you should know his main points about why Marbury is still important.

How many different arguments can you find in Marshal’s opinion in favor of judicial review by the Supreme Court. You should get at least 4 of the 6. Try to reduce the arguments to as few words as possible.

How would you characterize the source or nature of of Justice Marshall’s arguments originalist, textualist, current policy needs or living constitution, or something other than these .

3a. Eakin v. Raub Dr. Sager will discuss the dissenting opinion which is an argument about judicial review

Read Federalist No. 78 in Epstein and Walker Appendix. How many different arguments for judicial review of legislative acts can you find in Federalist 78? If you do not have access to the Appendix because you bought a used book here is a link to Fed 78 on the web(click here). While searching for a link to a full copy of Fed 78, I just found this summary of Fed 78 on a Tea Party website along with summaries of all of the Federalist Papers(click here)
Surprisingly, the website does not contain summaries of the Anti-Federalist Papers. Looks like there are other summaries available. (Might be interesting to compare them; perhaps a worthwhile project for a paper in a government course. Might take 2 or 3 major Federalist Papers, say 10 and 78 and see how accurate all the summaries are compared to your reading of them. Then see if there is an ideological content to the summaries. )

Videos 4, 5, and 6a.

Van Geel Chart Multicolors (click here)

Van Geel Chart Black and White(click here)

Class 3 Wednesday September 3rd

Early Challenges To Judicial Supremacy

4. Impeachment Trial of Justice Samuel Chase (Dr. Sager to discuss in class)

If you want to delve into the life of James Callender, the scandalmonger, who libeled and defamed both Adams and then Jefferson, William Safire wrote an historical novel entitled Scandalmonger. There is an interview with Safire on C-Span that covers the book. Safire is interviewed by “The Book Guys.” They know this historical period well. Click here Part of the charges stemmed from Chase’s behavior in the Callender case.
Make sure you know the section of the Constitution on impeachment and treason.

5. U.S. v. Aaron Burr You Tube video in 2 parts 30 minutes eacg
To prepare this case see the description of Burr’s Alleged Treasonous Activities and the story of the case (click here)
For Marshall’s opinion(click here) Just skim it to get a sense of what he is saying. Linder summary which is linked above will be sufficient. You should come to class with brief for this case just like any other case in the textbook. The Burr video will help you
understand the case in detail.

Carefully watch the Burr video before class: U.S. v. Aaron Burr
(Youtube video in 2 parts on video page) #14 on the video page or search Youtube and you will find this.Note: THIS VIDEO in total is 1 hour 20 minutes long total for both parts. There is part of the video missing about 30% into part II. There in a discussion with another Justice they discuss how to distinguish the definition of treason in the Bollman and Swarthout case from the Burr case. It appears Marshall used the English version in that case. one says well the Bollman and Swarthout not on trial for treason. The sued for and got a writ of habeas corpus to get out of prison. Rule in Burr case does not affect ultimate judgment in that case. Definition of treason in that case what is called obiter dicta, not essential to the ruling. This is raised again later in the video as well.
Can anything in the Burr case be related to some of the political issues we have seen over the past 4 years specifically? If so what and how?

Congressional Powers and the States

7. McCulloch v. Maryland(brief)(Note: There are two issues in this case and they are covered in different parts of the book. We will cover both issues: creating a bank and state taxing powers). Can you relate
This case to the essence of the story of Ben Franklin telling Thomas Jefferson about the Hatter’s sign?
For a critique of Marshall’s view(click here)
View video: McCulloch v. Maryland which can be found on Youtube. The link is on the video page.
A number of Marshall quotes in McCulloch are among his most famous. Can you pick them out?

The Contracts Clause I

8. Fletcher v. Peck(Brief)

9. Dartmouth College v. Woodward(Brief)

Watch whatever you can especially the ESPNparody of Burr Hamilton Duel)Videos 18, 19, 20, 21, 33

Class #4 Monday September 8th

The Commerce Power and National Economy

10. Gibbons v. Ogden(Brief)
View video: Gibbons v. Ogden

Using the Van geel chart compare McCullough as the precedent case and Gibbons as the main case. Which box?

Questions: Restate Marshall’s definition of the following terms: commerce, among the several states, regulate.
What is the source of these definitions?
What is difference between Justice Johnson’s view and C.J. Marshall’s?
Based on Marshall’s view of the commerce clause, what are the limits?
What role do states have in commerce based on Marshall’s views?
View Clip #30 on video page, Justice Roberts on Justice Duval who appears in several of these early cases
videos. Roberts calls him the most insignificant Justice ever. Might look at comments on video as well

Watch Folsom video about Robber Barons on video page. Also see Milton Friedman videos #36 and #37 Here To relate Gibbons to the steamship story in the video (click here).

Federal Judicial Power and the States

12. Martin v. Hunter’s Lessee(Brief)
(Take Marbury as precedent for Martin’s. Attempt to figure out which box in the Van geel chart you would be in with Marbury as the precedent case and
Martin as the main case. Did Martin narrow or broaden Marbury. What aspect of the Marbury case did Martin apply to? What do we remember most about the impact of Chisholm?)

13. Cohens v. Virginia(A summary appears in the text after Martin case. Read opinion in supplement to get some of the fine Marshall quotes)Dr, Sager to discuss(Query:
what does Cohen case add to Martin? Attempt to figure out which box in the Van geel chart you would be in with Martin as the precedent case and
Cohens as the main case. Did Martin narrow or broaden Cohens. To what aspect of the Martin case did Cohens apply to?)

Click Here for Chisholm, Martin and Cohens cases in word form

Federal Judicial Power and the States Taxation

14. Brown v. Maryland (supplement)( Click here for brief) Dr. Sager to discuss
Note: This brief is not as extensive as the one you will be doing with your assigned Supreme Court case
The Bill of Rights and the States
15. Barron v. Baltimore(Brief)( supplement)(click here for another edited version)

Paper #1 This will be discussed in class. It is a brief of a Supreme Court case. Note in the past some students have mistakenly done the lower court opinion. All cases assigned were decided by the U.S. Supreme Court The brief is due Thursday February 11th. A list of of case assignments by last name will be posted before class on February 2nd. For the briefing form to use for this brief and points for each part of brief (click here) Find your case through Findlaw or other online databases of Supreme Court cases and bring any questions about it to class on Wednesday. (For your assigned case (click here)case You are expected to do the case you are assigned so be sure you know how to find it. For your case and the points given for each part of the brief Two copies of paper which should be no longer than
3 pages, about 750-900 words will be due at beginning of Class 10 on February 13. You can hand it in any time before that. After being graded, you can redo your brief if your score is less than 92 and get up to a 92 by getting 1/2 the points back based on 1/2*(100-your score). It is advised the sooner you get this done, the better because it will improve your reading and briefing skills. NOTE THESE BRIEFS NEED To BE IN YOUR OWN WORDS UNLESS YOU ARE USING THE WORDING OF A STATUTE OR THE CONSTITUTION OR A SHORT QUOTE FROM A JUSTICE IN THE OPINION SECTION OF THE BRIEF. YOU CAN ALSO USE A RELEVANT PHRASE FROM OPINION IN ISSUES, ARGUMENTS AND HOLDING SECTION.

Click Here for Chisholm, Martin and Cohens cases in word form

Class #5 Wednesday September 10th

B. Taney Court 1836-1864
The Commerce Clause and the National Economy
16. Mayor of City of New York v. Miln(Brief)(supplement)(click here for another edited version)

The Contracts Clause and the National Economy
17. Charles River Bridge v. Warren Bridge(Brief)

For a discussion related to Gibbons about competition between Vanderbilt and his crony capitalist competitors see the following lecture by Burt Folsom It also explains how crony capitalism worked in this case based on his research using the Congressional records from the 1800’s. (click here)

Congressional Preemption –Federal Judicial Power and the States

18. Prigg v. Pennsylvania Dr. Sager to discuss(click here for excellent edited version of case) The following is a brief for this case. (read sample brief) Dr. Sager will discuss this case which is not in your text.

Federal Jurisdiction: Political Questions

19. Luther v. Borden Dr. Sager to discuss(supplement)click here for another edited version)For a discussion of Luther based on upholding or striking down a government policy (click here)

The Commerce Clause and the National Economy

20. Cooley v. Board of Wardens(Brief)

Federal Jurisdiction, Congressional Power and Slavery

21. Dred Scott v. Sanford(Brief)

Videos 7, 8, 23, 24 25 These will help you more fully understand the case. A couple are reenactments of parts of the Lincoln Douglas debates.
Be sure you have completed Arnn book through Chapter 6 which is about the Founders and Slavery. For exam you will need to have read Chapters 1-6 and the last chapter entitled “Conclusion.”

Class #6 Monday September 15th

Executive Power: The War Power

22. The Prize Cases(Brief)

C. Chase Court 1864-1873
Executive Power During War

23. Ex Parte Milligan(Brief)

Federal Jurisdiction: Congressional Limitations

24. Ex Parte McCardle(Brief)

Federal Jurisdiction and State’s Rights

25. Texas v. White(Not in book or supplement. Dr. Sager will discuss.)

26. Mississippi v. Johnson(Brief)

State and Federal Income Taxation

27. Collector v. Day Dr. Sager to discuss(supplement)

28. Springer v. U.S.Dr. Sager to discuss (supplement)

Class #7 Wednesday September 17

The Bill of Rights and the States

29. The Slaughterhouse Cases(Brief)

Read carefully the following articles. Are you, or will you be or become, part of the narrative? Compare to Dr. Arnn’s views on the
Declaration as it relates to the Constitution. This article suggests one reason I organize this course historically as well as what a larger purpose might be for being in this course.

Read Professor Arnn’s discussion slavery. ” 1776 truth vs 1619 falsehoods” (click here) and evaluate along with the Balkin article below.
Yale Law Professor Jack Balkin’s “The Declaration and the Promise of a Democratic Culture” (click here)

Summary of Chase Court(Dr. Sager)

D. The Waite Court 1874-1888
State Police Powers, Due Process and Property Rights
30. Munn v. Illinois(Brief)
How, if in any way, does this opinion relate to the Miller, Field and Bradley opinions in the Slaughterhouse Cases?
What are the grounds of agreement and disagreement with each opinion.
The Contracts Clause
31. Stone v. Mississippi(Brief)
What is the status of the contracts clause after this case?

The Commerce Power, State Action and Individual Rights
32. The Civil Rights Cases(Dr. Sager to discuss in class. Not in book or supplement)

State Police Power, Property Rights and Due Process
33. Santa Clara County v. Southern Pacific Railroad(Dr. Sager to discuss in class. Not in book or supplement)

D. The Fuller Court 1888-1910
State Police Powers, Property Rights and Due Process

34. Chicago and Milwaukee RR. v. MinnesotaDr. Sagerto discuss(supplement)
How does this case add to or subtract from the Munn case. Be sure to read the text book notes before and after Munn.

New book assignment: Begin reading Burton Folsom, New Deal, Raw Deal. Available on Amazon for less than $9.00. It should be finished right after Spring Break. It will provide some good background and context to the many of the cases we will cover in the Taft, Hughes and Stone Courts, especially Classes 16 and 17.

Class 8 Monday September 22

The Commerce Power, Taxing Power and the National Economy

35. U.S. v. E.C.Knight(brief)
36 Champions v. Ames (Brief) Same questions as above
37 McCray v. United States (brief)What does this case along with Ames change about one of the fundamentals of the Constitution

The Taxing Power

38. Pollock v. Home Savings and Loan (Dr. Sager to discuss)

Federal Police Powers, Due Process and Property Rights

39. Adair v. U.S. (Dr. Sager to discuss)

Class #9 Wednesday September 24th

Exam 1

Cases covered for the purposes of the van geel chart, case policy, facts, issues and uphold or strike down will go through #37 McCray for the United. States. There will be at least 10 van geel comparisons
For hypotheticals you can use all the relevant cases you want
Other objective questions will mainly focus on cases that class was to brief
Arnn book through chapter 6 may be covered on the exam. Focus is on main themes
All parts of the Constitution covered in cases discussed in class could be on exam. There will certainly be at least a 5 part match question for parts of the Constitution.
There will be at least one matching question on important quotes from various Justices
There will be some questions on the various justices views in cases with multiple opinions. except for including Calder all multiple opinion cases will come from Marshall courts where there were very few, up through Fuller court.
There may be questions about the various reenactments of famous cases.
There will be 2 essay questions that will require you make arguments for at least 2 sides, e.g.,
is this treason under the constitution. Won’t ask this one and of course, there was an argument about this in the Burr case.
Of course, important issues, background etc discussed in class could be on the exam.
A question might ask about the difference a particular fact situation might be treated by the Marshall Court versus the Taney or later Court

Class 10 Monday September 29th

40. Lochner v. New York(Brief)(Click here for votes) (Votes at bottom of chart are totaled as uphold vs. strikedown. Vote on side are votes of Justice who was on the Court when Ellis was decided. Year is year that original Justice left the Court)Be sure you review chart carefully before coming to class.
How does this case relate to Adair, discussed by Dr. Sager and E.C. Knight.
What are the famous quotes in the Holmes dissent?

Begin watching Trust Us a Pacific Legal

State Police Powers, Due Process and Property Rights

41 Muller v Oregon

F.The White Court 1910-21

The Commerce Clause, Due Process and Property Rights

42. Hammer v. Dagenhart(Brief)

The Commerce Clause

43. Shreveport Rate Cases Houston East & West Texas Railway Co. v. U.S.(Brief) (supplement)(also discussed in text) What is the criteria for determining if something
is part of interstate commerce and how does this relate to Gibbons and previous commerce clause cases? Now go over actual case. https://caselaw.findlaw.com/us-supreme-court/234/342.html

44. Missouri v. Holland(brief)
What are the important quotes by Justice Holmes.

Begin watching Trust Us a video put together by Pacific Legal Foundation a conservative think tank about the rise of the Administrative state which is discussed in the latter chapters of the Arnn book. A lot of the cases in this area are about delegation of power and interpretation of particular laws or executive orders.. For the 45 video (click here) The administrative state is called The Fourth Branch of Government and will be discussed indirectly in a number of cases throughout the rest of the semester. This video will be on the 2nd exam.

Class 11 Wednesday October 1st

G.The Taft Court 1921-30
Taxing Power
45. Bailey v. Drexel Furniture(Brief)
Federal Judicial Power: Standing
46. Frothingham v. Melon(Brief)(supplement) Dr. Sager to discuss

State Police Powers, Due Process and Property Rights

47. Adkins v. Children’s Hospital(Brief)

48. Pierce v. Society of Sisters and 48a. Meyer v. Nebraska Click here for Pierce, Click here for Meyer
(Dr. Sager to discuss)

Congressional Powers: Investigations
49. McGrain v. Daugherty(Brief)

Executive Power:Removal
50. Myers v. U.S.(Brief)

Class 12 Monday October 6th

The Takings Clause
51. Euclid v. Ambler Realty (Dr. Sager to discuss. Not in book or supplement)

Sutherland “pull quote”

“Regulations, the wisdom, necessity, and validity
of which as applied to existing conditions are now
uniformly sustained, a century ago, or even half a
century ago probably would have been
rejected as arbitrary and oppressive.”

“and in this there is no inconsistency, for, while the
the meaning of constitutional guarantees never
varies, the scope of their application must expand
or contract to meet the new and different
conditions which are constantly coming within the
field of their operations. In a changing world it is
impossible that is should be otherwise.”

52. Pennsylvania Coal Company v. Mahon(Brief)(supplement)(Dr. Sager to discuss)

Class 13 Wednesday October 8th

H. The Hughes Court 1930-1941
The Contracts Clause

Find the great quotes of Chief Justice Hughes in Blaisdell (which is below, Case No. 52) and Justice Sutherland dissenting in Blaisdell and another case we will get to West Coast Hotel v. Parrish reflecting on this quote. For class today read and carefully compare and contrast the two justices approach to understanding the Constitution and to constitutional interpretation. Which do you agree with and why? Now argue the other side. (Click Here)

53. Home Building and Loan Assoc. v Blaisdell

Executive Powers: Removal

54. Humphrey’s Executor v. U.S.(Brief)

(will begin referencing Folsom book in class today)

What is the relationship, if any, between the some or all of the book contents and what we are covering in class?
Conceptualize this as broadly as you can.

The Commerce Power, The National Economy and Businesses
55. Schechter Poultry v. U.S(Brief)

The Taxing Power
56. U.S. v. Butler(Brief)

State Police Powers, Due Process and Property Rights
57. Nebbia v. New York(Brief)
58. West Coast Hotel v. Parrish(Brief)

Class 14 Monday October 13th

The Commerce Power and the National Economy

59. NLRB v. Jones and Laughlin Steel(Brief)

The Taxing and Spending Power

60. Steward Sewing Machine v. Davis(Brief)

Videos 1,1a, 2, 2a and 2b (these will be on 2nd exam)

Executive Powers: Treaty and War Power

61. U.S. v. Curtis Wright(Brief)

Judicial Review, Due Process, Congressional Power and the National Economy

62. Ex Parte Grossman (brief) I have added this because of its contemporary relevance. See if you can uncover what current situations, if any, it might apply to today. Also for it to apply a couple of things which are strong possibilities would have to happen. The current situation involves different facts-Grossman was about selling alcohol-but could be the same general legal situation down the road.

I. The Stone Court 1941-1946

The Commerce Power and the National Economy

63. U.S. v. Darby Lumber(Brief)

64. Wickard v. Filburn(Brief)

Class 15 Wednesday Wednesday

64a United States v. Carolene Products NIB Dr. Sager to briefly discuss

Chief Justice Stone’s famous footnote 4 in Carolene Products:
“There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments….It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment…Nor need we inquire …whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”

65. Ex Parte Quirin(Brief)

66. Korematsu v. U.S.(Brief)
View #13 on Video page which is several short videos about the Korematsu case and Pearl Harbor. Most important is last one
with Michelle Malkin defending her position on the need for the
internment on what was a show entitled Hannity and Colmes(conservative vs liberal) back in early 2000’s. Her position
has received enormous scholarly criticism.

The Commerce Power and the States: The Dormant Commerce Clause

67. Southern Pacific v. Arizona(Brief)

In case you have time for lighter reading, here is a set of letters about my and my teaching that appeared in the Daily Texas in 2001 with a minor post script from me about 8 or more years later. (click here)

Class 16 Monday October 20th

J. The Vinson Court 1946-1953
Takings

68. U.S. v. Causby(Brief)

Executive Powers The War Power
69. Youngstown Sheet and Tube v. Sawyer(Brief)
Carefully read at least twice the Jackson concurrence in this case. It is considered much more important than
Black’s majority opinion. In addition, you might find it applicable to many current issues and perhaps if followed determinative of some ongoing or potential Supreme Court cases.

Go over the Principles of Constitutional Construction (click here)
See how these principles fit into the model Dr. Sager constructed in class.

The Warren Court 1953-1969

Takings: Public Use

70. Berman v. Parker(Brief)

Congressional Preemption

71. Pennsylvania v. Nelson (Dr. Sager to discuss)

Congressional Powers; Investigation

72. Watkins v. U.S.(Brief)

73. Barenblatt v. U.S. (Brief)

Dr. Sager will briefly the two spy cases from the 40’s, U.S. from Rosenberg and the Alger Hiss case. They will not directly be on the exam. However, if somehow you find a use for them in one of the essay hypotheticals you can.

In case you have time for lighter reading, here is a set of letters about meand my teaching that appeared in the Daily Texas in 2001 with a minor post script from me about 8 or more years later. (click here)

74. Cooper v. Aaron(Dr. Sager to discuss. Not in book or supplement)

Paper #2 Assignment
The assignment is to read 3 Supreme Court briefs
that were filed in your case. Read both party’s
original briefs,stated as petitioner/respondent or appellant/appellee. Then read a brief for one of the numerous Amicus Curiae. You choose
which amicus brief you read. Write a 3-4 page analysis,
1000 words max, comparing and contrasting the major arguments in the briefs with the arguments used by the majority in the Supreme
Court in case you briefed for the 1st paper. You can find the
complete set of briefs on Scotus Blog or The American Bar Association website or Lexis/Nexix. U.T. has a subscription to Lexis/Nexis.
Cases are usually ordered by Term of the Court and then by when the case was argued within that Term.
Best way to search: put name of your case then Scotus Blog in search bar.
Make sure you can find briefs for your case before you come to class on March 23rd

Better yet you can do the whole paper over Spring Break
Be sure you have looked at the list of briefs for your case so can ask any questions that may come up.

Paper will be due around April 20th

Class 17 Wednesday October 22nd

Federal Jurisdiction: Political Questions and Standing

75. Baker v. Carr(Brief)
76. Flast v. Cohen(Brief)

The Commerce Power and the National Economy
77. Heart of Atlanta Motel v. U.S.(Brief)(Dr. Sager to discuss)

Modern Substantive Due Process
78 Williams v. Lee Optical(Dr. Sager to discuss)

Congressional Power: Taxation
79. U.S. v. Kahringer(Brief)(Supplement)

Congressional Power: Privileges
80. Powell v. McCormack(Brief)

L. The Burger Court 1969-1986

Executive Powers: The War Power

81. New York Times v. U.S.(Dr. Sager to discuss. Not in book or supplement)

82. U.S. v. U.S. District Court(Dr. Sager to discuss. Not in book or supplement)

Class 18 Monday October 27th

Exam 2

Will cover all cases up to Case #85 Gravel v. United States. U.S. v Nixon and cases coming after will not be on this exam. For cases you have been assigned to brief you should be able to identify majority , concurring and dissenting positions by short quotes or snippets from case.
The one case prior to Nixon we will not cover is Ex Parte Grossman,
Cases discussed by Dr. Sager. Just need to know very basic facts, government policy and whether uphold or strike down so you can relate it to other cases we have covered.
You should be able to place cases in time. That is an essay hypothetical question may ask if the outcome would be different if case arose 50 years ago. Don’t hold me to 50 years since some changes occur over longer or shorter periods.
Other materials on exam: New Deal Raw Deal will be covered, videos assigned on Roosevelt Administration related to depression, videos about WWII and Korematsu and Michelle Malkin arguments for and against interment. Also know the essential of the piece on constitutional interpretation.
Not on this exam the video Trust Us.
In addition to being able to identify famous quotes in cases briefed, (and many don’t have them), there are a number of quotes on this assignment pages you should be able to identify.
Cases on Exam 1. As noted in class a number of those are classic, Marbury, Gibbons, Fletcher and Dartmouth college among others. You should at least recall the policy in the case and obviously whether it was an uphold or strike down. These previous cases will only appear in a van geel comparison on objective part of exam or might be usable to to create arguments on essay questions if you think they might be relevant.
Here is a note on uphold/strike down if it is still unclear for you. Remember the title of this course is American Constitutional Development (click here)

Class 19 Wednesday October 29th

The Burger Court continued

Takings

83. Hawaii Housing Authority v. Midkiff(Brief)

The Commerce Power

84. Hunt v. Washington State Apple Advertising(Brief)

85. Gravel v. U.S.(Brief)

Judicial Review and Executive Powers: Executive Privilege

86. U.S. v. Nixon(Brief)

Congressional Powers: Delegation and Legislative Veto

87. I.N.S. v. Chadha(Brief)

Congressional Powers: Delegation

88. Bowsher v. Synar(Dr. Sager to discuss)*

The Contracts Clause

89. Allied Structural Steel v. Spannus(Brief)Dr. Sager to discuss

Class 20 Monday November 3rd

The Takings Clause

90. Penn Central Transportation Co. v. City of N.Y.(Brief)

91. Keystone Bituminous Coal v. Benedectin(Brief)(supplement)

Separation of Powers

92. Morrison v. Olson(Brief)

93 Mistretta v. United States(brief fact)
Now compare Bowsher, Chadha and Morrison. What are similarities and differences.
Also as best you can compare the voting behavior of justices who decided all 3 cases.
If you knew only how they voted in these cases and the similarities and differences
in these cases how might they vote in the following case: Read the facts only in Mistretta v. U.S.
Can you make a prediction about the newly appointed Justice Scalia based on what you think
his views were before he was appointed to the Court?

Federal State Relations
94. Pacific Gas and Electric v. State Energy Commission(Dr. Sager to discuss)

Executive Powers: War Power and Treaties

95. Dames and Moore v. Regan(Brief)
The Supreme Court and State Constitutions

Class 21 November 5th

The Supreme Court and State Constitutions

96. Michigan v. Long(Dr. Sager to cover in class)

The Commerce Power and the National Economy. The Tide Turns?

97. National League of Cities v. Usery(Dr. Sager to discuss)
98. Garcia v. San Antonio Metropolitan Transportation Authority (brief)

M. Rehnquist Court 1986-2005

The Commerce Clause, 10th Amendment and the National Economy,.The Tide Turns Again?

99. U.S. v. Lopez(Brief)
98. Printz v. U.S.(Brief)

Class 22 Monday November 10th

The Commerce Clause, 10th Amendment and the National Economy,.The Tide Turns Again?

100. U.S. v. Morrison(Brief)

101. Granhold v. Heald(Brief)

The Taxing and Spending Power

102. South Dakota v. Dole(Brief)

State Powers and Federalism

103 Alden v. Maine(brief)

Class 23 Wednesday November 12th

104. Gonzales v. Reich (brief)

105. Oregon Waste Systems v. Department of Environmental Quality of State of Oregon(brief)

State Powers and Federalism

106 U.S. Term Limits v Thorton (Dr. Sager to discuss)

107. Virginia Community College v. Katz(Dr. Sager to discuss)

108. Lucas v. South Carolina Coastal Authority(Brief)

109. Kelo v. City of New London(Brief)

View videos 3 and 29 on Kelo case Will be part of the exam.

Some notes on Chief Justice Earl Warren

Class 24 Monday November 17th

Executive Powers: Immunity
110. Clinton v. Jones(Brief)

Judicial Power
111. Hein v. Freedom from Religion Foundation(Dr. sager to discuss)

Executive Power
112. Hamdi v. Rumsfeld (brief)

113. Bond v. United States (Dr. Sager to discuss)

M Roberts Court 2007-??

Mainly new takes on old issues

Federal Taxing Power and Commerce Power
114 NFIB v. Sibelieus

Executive Power
115 Clapper v Amnesty International(Dr. Sager to discuss)

Two views of the Clarence Thomas relationship with Harlan Crow

1. https://www.lawdork.com/p/clarence-thomas-rules-are-for-losers

2. https://www.wsj.com/articles/clarence-thomas-supreme-court-propublica-harlan-crow-1c4c2f41?mod=opinion_lead_pos1

Class 25 Wewdnesday November 19th
Executive Powers

116. Zivotofsky v Kerry

Takings
117 Horn v. Department of of Agriculture(brief)

Executive Power
118 Clinton v. New York(Dr. Sager to discuss)

States Taxation
119 South Dakota v. Wayfare(brief)

Legislative Power
120. Gundy v. United States(brief)

Nation Preemption
121 Arizona v. United States(brief)
122.Murphy v NCAA(brief)

Paper #2 was assigned, Due on Wednesday November 19th

Fall Break Nov 24-29th

Class 26 Monday December 1

Recent Roberts Court cases

Judcial Power
123. Patcha v Zinke(brief) This case has a review of McCardle, a part of Fletcher we usually don’t cover and a case we did not cover U.S. v Klein. Dr. Sager will discuss this latter case though it is well discussed by both sides of this opinion

Federal Powers
124. Sween v. Melin(brief)

Executive Power
125.Trump v Vance(brief)

Legislative Power
126. Trump v. Mazar(brief) This case is important for many reasons. A major one is that it is a review of many of the cases we have covered this semester. Clinton v. Jones, U.s. v Nixon, McGrain v Daugherty, Watkins and Barenblatt.

Class 27 Wednesdat December 3rd
Exam #3

Right now there will be an objective and two essays for exam 3 Videos will be Trust Me and two videos on the Kelo case

Cases Covered: All cases assigned since last exam starting with #86 U.S. v Nixonthrough #126Trump v.Mazars. Also case Virginia Community College v. Katz will not be on exam. (Note the latter cases were recently renumbered)
2. Chief Justices: from Taft to Roberts
3. The formalist, functionalist voting chart

2. There are no supplementary book assignments for this exam.

3. Lastly, for some comparison questions it may be expected you recall some of the major cases from each era for example, Calder, Gibbons, Korematsu, Marbury, McCullough, Dred Scott, Milligan, Munn, Lochner, NLRB v Jones and Laughlin, Wickard, Youngstown. This is a not an exhaustive list. We have mentioned a good number of past cases that relate to current ones in the last couple of classes.

7. You may use the case you briefed and used for paper #2 if that fits into your answer on any of the essays. Both essays on exam will be hypotheticals on the exam.

Class 28 Monday December 8th 50 ish plus or so Semi Annual End of Year Awards Dinner at Dr. Sager’s home. You and your plus 1 are invited.
Usually runs 6-8 p.m. Parents can be your plus one.

Assignments