History 275

LAW AND CONSTITUTIONALISM IN AMERICAN HISTORY

1775-1980

Professor Henretta Fall Term, 2003

M/W/F 10-11 a.m.

This course explores both the "history" and the "law" of the United States. It probes the reciprocal relationships between legal matters and political, economic, and social institutions. It also addresses the issue of how history is written and interpreted , and requires students to attempt various types of historical analysis. From a substantive point of view, the course focuses on four broad topics:

Gender: women and the law--weeks 12-14

The State: republicanism--weeks 1-3

: classical liberal--weeks 7-8

: modern liberal: weeks 10-14

The Economy: and the law--weeks 3, 7-8, 11

Race: slavery and civil rights--weeks 4-6, 10

ASSIGNED TEXTS

The following texts are REQUIRED and should be purchased. They are available in paperback editions at the University Book Store and The Book Exchange.

Edward Countryman, editor, What Did the Constitution Mean to Early Americans? (Bedford/St. Martin's, 1999)

Robert Marcus and Anthony Marcus, On Trial: American History Through Court Proceedings and Hearings (Brandywine Press, 1998)

Kermit Hall, William Wiecek, and Paul Finkelman, American Legal History: Cases and Materials, Second edition (Oxford University Press, 1996).

Paul Kens, Lochner v. New York: Economic Regulation on Trial (Univ. Press of Kansas, 1998)

Melvin I. Urofsky, Affirmative Action on Trial: Sex Discrimination in Johnson v. Santa Clara (Univ. Press of Kansas, 1997)

COURSE REQUIREMENTS

1. REGULAR attendance at the Class Meetings and PARTICIPATION in the discussion.

2. Completion of the assigned reading for EACH class BEFORE the Class Meeting.

3. A Final Examination on December in (the regular classroom).

4. Completion of the required written work, all of which is based on the books assigned in the course. Specific assignments will be handed out. This work should be given to the instructor on the assigned day and normally cannot be made up.

5. Grades for the course will be calculated as follows:

Oral participation 20% Written work 50% Final exam 30%

COURSE OUTLINE--and Reading and Writing Assignments

PART I. CONSTITUTIONALISM: 1775-1850

During Part I of the course, each class meeting will begin with a short lecture. Then there will be a class discussion of the assigned reading for that class meeting.

Week 1 The American Revolution: Law and Republicanism (September 1-5)

Wed., Sept. 3 No Assigned Reading

Fri., Sept. 5 Hall, Legal History, 56-68.

Week 2 State and National Constitutionalism (Sept. 8-12)

Mon., Sept. 8 Hall, Legal History, 68-77; Countryman, Constitution, 69-85.

Wed. , Sept. 10 Hall, Legal History, 80-90 and Countryman, Constitution, 91-109

Fri., Sept. 12 Countryman, Constitution, 17-64

Week 3 Problems of Constitutional Meaning (Sept. 15-19)

Mon. Sept. 15 Hall, Legal History, 94-102;,Countryman, Constitution, 113-132

Wed. Sept. 17 Hall, Legal History, 103-113; Countryman, Constitution, 141-161

Fri. Sept. 19 NO CLASS MEETING; FIRST PAPER DUE

PT II. FROM A REPUBLICAN TO A LAISSEZ-FAIRE STATE AND SOCIETY: 1820-1890

During Parts II and III, the class will be divided into two groups, A and B.

Group A will have class on Friday, Sept. 26, Friday, Oct. 10, and Friday, Oct. 24

and will have essays due on Friday, October 3 and Friday, Oct. 17.

Group B will have class on Friday. Oct. 3 and Friday, Oct.17, and Friday, Oct. 31

and will have essays due on Friday, October 10 and Friday, October 24.

Week 5 The State and Economic Development, 1800-1850 (Sept. 22-26)

Mon. Sept. 22 Hall, Legal History, 114-139

Wed. Sept. 24 Hall, Legal History, 139-186.

Fri. Sept. 26 GROUP A: Discussion of Week's Reading (Group B: No Class Meeting)

Week 6 Republican Slavery and Liberal Freedom (Sept. 29-Oct. 3)

Mon. Sept. 29 Hall, Legal History, 187-226

Wed. Oct. 1 Hall, Legal History, 226-255; Marcus, On Trial, 1-13

Fri. Oct. 3 GROUP B: Discussion of Week's Reading (Group A: Paper Due; No Class)

Week 7 Women: The Erosion of Coverture (October 6-10)

Mon. Oct. 6 Hall, Legal History, 29-34, 264-283; Marcus, OnTrial, 14-27

Wed. Oct. 8 Hall, Legal History, 298-303, 392-393, 460-464; Marcus, On Trial, 75-89

Fri. Oct. 10 GROUP A: Discussion of Week's Reading (Group B: Paper Due; No Class)

Part III. The Coming of the Regulatory State, 1890-1945

Week 8 Industrialization and Regulation (October 13-17)

Mon. Oct. 13 Hall, Legal History, 339-350, 356-378;

Wed. Oct. 15 Kens, Economic Regulation, Chapters 1-6

Fri. Oct. 17 GROUP B: Discussion of Week's Reading (Group A: Paper Due; No Class)

Week 9 Laissez-Faire Challenged (October 20-24)

Mon. Oct. 20 Hall, Legal History, 378-400; Marcus, On Trial, 47-64

Wed. Oct. 22 Kens, Economic Regulation, Chapters 7-10

Fri. Oct. 24 GROUP A: Discussion of Week's Reading (Group B: No Class)

Week 10 The New Deal: The Decline of Economic Substantive Due Process and the Rise

of Equal Protection (October 27-31 )

Mon. Oct. 27 Hall, Legal History, Chapter 457-495; Marcus, On Trial, 65-74

Wed. Oct. 29 Kens, Economic Regulation, Chapters 11-12

Fri. Oct. 31 Group B: Discussion of Week's Reading (Group A: No Class)

Part IV. The Legal Process: The Fellow Servant Rule and Workers' Compensation, 1830-1930

In Part IV we will examine the various facets of the Legal Process through a close examination of the evolution of the Fellow Servant Rule and Workers Compensation. The readings are from The Legal Process; three copies of this book are on Two Hour Reserve in McKeldin Library. Don't wait until the last minute to do the reading, as the books will probably not be available. Most of the class will consist of a discussion of the reading. Come Prepared!!

Week 11 The Fellow Servant Rule: Courts and Legislatures (November 3-7)

Mon. Nov. 3 Auerbach, et al, The Legal Process, 12-32, 43-48, 74-82

Wed. Nov. 5 Auerbach, et al, The Legal Process, 149-171, 303-308, 374-377

Fri. Nov. 7 Auerbach, et al, The Legal Process, 408-421, 424-438, 475-485

Week 12 Workers' Compensation and the Rise of Adminstrative Law (November 10-14)

Mon. Nov. 10 Auerbach, et al, The Legal Process, 534-539, 544-549, 593-597, 623-631

Wed. Nov. 12 Auerbach, et al, The Legal Process, 663-673, 725-740

Fri. Nov. 14 Auerbach, et al, The Legal Process, 751-769, 819-829

Part V. State Power and Individual Rights in the Twentieth Century

Week 13 War, Civil Liberties, and Civil Rights (November 17-21)

Mon. Nov. 17 Hall, Legal History, pp. 400-436

Wed. Nov. 19 Hall, Hall, Legal History, pp. 445-454, 510-518

Fri. Nov. 21 Class Discussion of Marcus, On Trial, 90-105, 136-151

Week 14 Paper-Writing Week (November 24-26; Thanksgiving Holiday, November 27-28)

NO CLASS MEETINGS; Paper Due on the Legal Process by noon on Wednesday, November 26.

Week 15 Women and the Law (December 1-5)

Mon. Dec. 1 Urofsky, Affirmative Action, Preface and Chapters 1-2

Wed. Dec. 3 Urofsky, Affirmative Action, Chapters 3-4

Fri. Dec. 5 Class Discussion of Marcus, On Trial, 171-187, 188-203

Week 16 Modern Substantive Due Process (December 8-12)

Mon. Dec. 8 Hall, Legal History, pp. 518-526; Urofsky, Affirmative Action, Chap. 5-7

Wed. Dec. 10 Urofsky, Affirmative Action, Chapters 8-10 and postscript

Fri. Dec. 12 Discussion of Marcus, On Trial, 204-222 and Review of Course

FINAL EXAM: (THE REGULAR CLASSROOM)

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James Henretta Office Hours:.

Phone: (301) 405-4269 E-mail: henretta@umd.edu