A. The Origins of the Constitution

1. The Declaration of Independence
2. The Origin of American Federalism
3. The Agency Theory of Government
4. The Articles of Confederation
5. Drafting and Ratifying the Constitution
6. The Federalist Papers (No. 10, No. 78, No. 51)

B. The Origins of the Bill of Rights

1. Federalist Objections to a Bill of Rights
2. The Anti-Federalist Reply (Brutus II)
   1. Brutus II, The New York Journal
3. James Madison Delivers on the Promise of Amendments
   1. Madison’s Speech to the House Introducing Amendments
4. The Original Meaning of the Phrase “Rights . . . Retained by the People” in the Ninth Amendment

C. The Scope of Congressional Power: The Debate over the First National Bank

1. James Madison, Speech in Congress Opposing the National Bank 
2. Opinion of Attorney General Edmund Randolph 
3. Opinion of Secretary of State Thomas Jefferson 
4. Opinion of Secretary of the Treasury Alexander Hamilton 

D. Fundamental Principles v. Expressed Constraints

1. Calder v. Bull 

E. Did the “Bill of Rights” Apply to the States?

1. Barron v. City of Baltimore 

 

A. The Development of Slavery in America from 1619 to 1787 

B. The Constitution’s Three Primary Concessions to Slavery 

1. The First Compromise over Slavery: The Three- Fifths Clause
2. The Second Concession to Slavery: The Slave Trade Clause
3. The Third Concession to Slavery: The Fugitive Slave Clause
4. Antislavery Delegates Held the Line and Rejected the Concept of “Property in Man”
5. Why Compromise with Slaveholders?
6. The Growth of Slavery and Proslavery Ideology After Ratification

C. The Fugitive Slave Act of 1793

1. Salmon P. Chase Argued That the Fugitive Slave Act Was Unconstitutional
   1. Speech of Salmon P. Chase, in the Case of the Colored Woman, Matilda, Who Was Brought Before the Court of Common Pleas of Hamilton County, Ohio, by Writ of Habeas Corpus
2. The Taney Court Upheld the Constitutionality of the Fugitive Slave Act
   1. Prigg v. Pennsylvania
3. Constitutional Abolitionism: Rejecting the Framers’ Intent
4. The Constitutional Abolitionists Response to Prigg
   1. Lysander Spooner, A Defense for Fugitive Slaves Against the Acts of Congress of February 12, 1793

A. Slavery and the Due Process of Law

B. Dred Scott v. Sandford

1. Dred Scott v. Sandford

C. Constitutional Abolitionism and the Dred Scott Decision

1. Frederick Douglass, Speech Delivered, in Part, at the Anniversary of the American Abolition Society, Held in New York
2. Frederick Douglass, The Constitution of the United States: Is It Pro- Slavery or Anti- Slavery?, Speech Delivered in Glasgow, Scotland

D. The Aftermath of Dred Scott v. Sandford

A. The Adoption of the Reconstruction Amendments

1. The Thirteenth Amendment and the Civil Rights Act of 1866
2. The Fourteenth Amendment
3. The Fifteenth Amendment

B. What Did the “Privileges or Immunities of Citizens of the United States” Protect?

1. The History of the Privileges or Immunities Clause
2. The Supreme Court Deletes the Privileges or Immunities Clause from the Constitution
   1. The Slaughter- House Cases
   2. Bradwell v. State of Illinois
3. Did the Privileges or Immunities Clause Protect Enumerated Rights from State Abridgement?
   1. United States v. Cruikshank
   2. McDonald v. City of Chicago
4. Did the Privileges or Immunities Clause Protect Unenumerated Rights from State Infringement?

C. The Enforcement Powers of the Thirteenth and Fourteenth Amendments

1. Congress’s Enforcement Powers and the Civil Rights Act of 1875
   1. Strauder v. West Virginia
   2. The Civil Rights Cases
2. The Supreme Court’s Modern Approach to Congress’s Enforcement Powers
   1. Katzenbach v. Morgan
   2. United States v. Morrison

D. Defining the Due Process and Equal Protection Clauses of the Fourteenth Amendment

1. What Is the Original Meaning of the “Due Process of Law” and the “Equal Protection of the Law”?
2. The Due Process and Equal Protection Clauses Can Both Bar Racial Discrimination
   1. Yick Wo v. Hopkins
3. The “Separate but Equal” Doctrine
   1. Plessy v. Ferguson

A. The Due Process Clause During the Progressive Era

1. Two Ways to Approach the Due Process Clause
2. Extending Fundamental Rights to the States Through the Due Process Clause
   1. Chicago, Burlington & Quincy Railroad Co. v. City of Chicago
3. “Economic” Liberty in the Progressive Era
   1. Lochner v. People of the State of New York
   2. Muller v. State of Oregon
   3. Buchanan v. Warley
   4. Adkins v. Children’s Hospital of the District of Columbia
4. “Personal” Liberty in the Progressive Era
   1. Meyer v. State of Nebraska
   2. Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary
   3. Buck v. Bell

B. From the Presumption of Liberty to the Presumption of Constitutionality

1. “Economic” Liberty Before the New Deal
   1. O’Gorman & Young, Inc. v. Hartford Fire Insurance Co.
   2. Nebbia v. People of State of New York
2. “Economic” Liberty Before and After 1937
   1. West Coast Hotel Co. v. Parrish

C. Qualifying the Presumption of Constitutionality

1. United States v. Carolene Products Co.
2. A Footnote to Footnote Four
3. Footnote Four and “Representation Reinforcement”
4. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review

D. The Irrebuttable Presumption of Constitutionality After the New Deal

1. The Federal District Court in Lee Optical Applies the Rebuttable Presumption of Constitutionality
   1. Lee Optical of Oklahoma v. Williamson
2. The Warren Court Makes the Presumption of Constitutionality Virtually Impossible to Rebut
   1. Williamson v. Lee Optical of Oklahoma
3. A Brief History of the Supreme Court’s Approaches to the Due Process Clause
4. The Filled Milk Act Is Finally Declared Unconstitutional
   1. Milnot Company v. Richardson

E. What About the Ninth Amendment?

1. James Madison and the Ninth Amendment
2. The Supreme Court Dismisses the Ninth Amendment
   1. United Public Workers v. Mitchell
3. The Ninth Amendment, Ghosts, and Ink Blots

A. Rejecting “Separate but Equal”

1. Racial Discrimination by State Governments
   1. Brown v. Board of Education of Topeka
2. Racial Discrimination by the Federal Government
   1. Bolling v. Sharpe
   2. Brown v. Board of Education of Topeka (Brown II)
3. The Massive Resistance to Brown
   1. Cooper v. Aaron
4. Can Brown Be Reconciled with Original Meaning?
   1. Michael W. McConnell, Originalism and the Desegregation Decisions
   2. Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell
   3. Michael W. McConnell, The Originalist Justification for Brown: A Reply to Professor Klarman
5. Racial Classifications That Apply Equally to All Races
   1. Loving v. Virginia
6. The Three Tiers of Scrutiny Under the Equal Protection Clause
7. Is There Discriminatory Intent or a Discriminatory Impact?
   1. Washington v. Davis

B. Affirmative Action

1. Admission to School
   1. Regents of the University of California v. Bakke
   2. An Act to Establish a Bureau for the Relief of Freedmen and Refugees
   3. Grutter v. Bollinger
   4. Gratz v. Bollinger
   5. Fisher v. University of Texas at Austin (Fisher II)
2. Employment
   1. Adarand Constructors v. Peña

A. Sex Discrimination and Intermediate Scrutiny

1. Frontiero v. Richardson
2. Craig v. Boren
3. United States v. Virginia

B. Other Types of Discrimination and “Heightened” Rational Basis Scrutiny

1. Cleburne v. Cleburne Living Center, Inc.
2. Romer v. Evans

A. Protecting the Unenumerated Right of Privacy

1. Griswold v. Connecticut
2. Roe v. Wade

B. Two Approaches to Protect Liberty Under the Due Process Clauses

1. The “Fundamental Rights” Doctrine
   1. Bowers v. Hardwick
   2. Washington v. Glucksberg
   3. Troxel v. Granville
2. Protecting “Liberty” and “Dignity”
   1. Planned Parenthood of Southeastern Pennsylvania v. Casey
   2. Washington v. Glucksberg
   3. Gonzales v. Carhart
   4. Whole Woman’s Health v. Hellerstedt
   5. Lawrence v. Texas
3. From the Defense of Marriage Act to Same- Sex Marriage: United States v. Windsor
   1. Obergefell v. Hodges

A. The Origin of the Free Speech Doctrine

1. Sedition and the Original Meaning of the First Amendment
   1. The Virginia Resolution
   2. The Kentucky Resolution
2. The Bad Tendency Test
   1. Schenck v. United States
   2. Debs v. United States
   3. Abrams v. United States
   4. Gitlow v. People of State of New York
   5. Stromberg v. California
3. Unprotected Speech
   1. Chaplinsky v. New Hampshire
4. The Imminent Lawless Action Test
   1. Brandenburg v. Ohio

B. What Constitutes “Speech”?

1. When Is Conduct Speech?
   1. United States v. O’Brien
   2. Texas v. Johnson
   3. R.A.V. v. City of St. Paul
2. Does Money Equal Speech?
   1. Buckley v. Valeo
   2. McConnell v. Federal Election Commission
   3. Citizens United v. Federal Election Commission

C. What Constitutes “Abridging” the Freedom of Speech?

1. How Can the Government Regulate the Time, Place, and Manner of Speech?
   1. Ward v. Rock Against Racism
2. Does the First Amendment Ever Protect Speech That Is Tortious?
   1. New York Times Co. v. Sullivan
   2. Gertz v. Robert Welch, Inc.
   3. Snyder v. Phelps
3. Is the Press Exempt from General Laws?
   1. Branzburg v. Hayes
   2. Cohen v. Cowles Media Co.
4. May the Government Mandate Access to the Press?
   1. Red Lion Broadcasting Co. v. Federal Communications Commission
   2. Miami Herald v. Tornillo

D. Is Some Speech Less Worthy of Protection?

1. “Obscene” and Sexually Explicit Speech
   1. Stanley v. Georgia
   2. Miller v. California
   3. Ashcroft v. Free Speech Coalition
2. Other Forms of “Offensive” Speech
   1. United States v. Stevens
   2. Brown v. Entertainment Merchants Association
3. Commercial Speech
   1. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council
   2. Central Hudson Gas & Electric Corp. v. Public Service Commission
   3. Lorillard Tobacco v. Reilly
   4. National Institute of Family and Life Advocates v. Becerra

A. Compulsory Disclosure of Membership

1. NAACP v. Alabama
2. Buckley v. Valeo
3. McConnell v. Federal Election Commission
4. Americans for Prosperity Foundation v. Bonta

B. Compulsory Expression

1. Abood v. Detroit Board of Education
2. Janus v. American Federation of State, County, and Municipal Employees, Council 31

C. Compulsory Association

1. Roberts v. United States Jaycees
2. Boy Scouts of America v. Dale

A. Belief vs. Conduct

1. Reynolds v. United States

B. Generally Applicable Laws That Burden the Free Exercise of Religion

1. Sherbert v. Verner
2. Employment Division, Department of Human Resources of Oregon v. Smith
3. Church of the Lukumi Babalu Aye v. City of Hialeah
4. Trinity Lutheran Church v. Comer
5. Espinoza v. Montana Department of Revenue

C. Congress Responds to Employment Division v. Smith

A. The Establishment Clause on the Burger Court

1. Lemon v. Kurtzman
2. Marsh v. Chambers
3. James Madison, The Detached Memorandum

B. The Establishment Clause on the Rehnquist Court

1. Lee v. Weisman
2. McCreary County, Kentucky v. ACLU of Kentucky
3. Van Orden v. Perry

C. The Establishment Clause on the Roberts Court

1. Town of Greece v. Galloway
2. The American Legion v. American Humanist Association

A. Does the Second Amendment Protect an Individual Right?

1. District of Columbia v. Heller

B. Does the Right to Keep and Bear Arms Apply to States?

1. McDonald v. City of Chicago

C. The Right to Keep and Bear Arms in the Lower Courts

1. Ezell v. City of Chicago
2. Kanter v. Barr

D. The Right to Keep and Bear Arms in the Supreme Court

1. New York State Rifle & Pistol Association, Inc. v. City of New York, New York
2. Rogers v. Grewal

A. The Rights of the Accused on the Warren Court

1. Mapp v. Ohio
2. Gideon v. Wainwright
3. Miranda v. Arizona
4. Katz v. United States
5. Terry v. Ohio

B. The Rights of the Accused on the Burger Court

1. United States v. Leon

C. The Rights of the Accused on the Rehnquist Court

1. United States v. Dickerson
2. Dickerson v. United States
3. Kyllo v. United States
4. Crawford v. Washington

D. The Rights of the Accused on the Roberts Court

1. United States v. Jones
2. Carpenter v. United States
3. William Baude & James Y. Stern, The Positive Law Model of the Fourth Amendment

A. What Is a “Taking”?

1. Pennsylvania Coal Co. v. Mahon
2. Murr v. Wisconsin
3. Cedar Point Nursery v. Hassid

B. What Is a “Public Use”?

1. Kelo v. City of New London