Election Night (all times Eastern, so subtract 3)
For Monday, read the Madrid, Latino Century excepts on Canvas
Selma the movie(at 2:00): vs. the actual conversation between LBJ and MLK (first few minutes, skip to 6:00)
Now, this bill was of course drafted by a theologian, or somebody versed in apologetics.
There's an amusing bit of evidence on that subject in the very language of the bill.
The bill keeps using... the Act keeps using the term "evidences" in the plural.
We lawyers never speak of "evidences" in the plural. We speak of "evidence", the singular.
And I got nagged by it, and I looked it up the other day.
And of course the only dictionary reference to "evidences" is to Christian apologetics: the evidences for Christianity. This is a matter of theological disputation.
- Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
- Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
- Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
- Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
- Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
- Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
- Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
- Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Citation
For next time: Edwards v. Aguillard, which illustrates several distinctive features of American government and political culture: federalism, religion, the role of courts.
You need not look up the many references to precedent: just be aware that SCOTUS opinions rely heavily on previous cases.
Appellate Courts
Civil Liberties and Civil Rights: The Difference
Why did Hamilton originally reject a bill of rights?
Answer one of the following
Option 1:
In Federalist 78, Hamilton argued that the judiciary has “neither force nor will, but merely judgment” and must rely on the other branches to carry out its rulings. Test his claim against one Supreme Court decision that provoked a political backlash. Do not choose Brown, Roe, Dobbs, Obergefell, or Citizens United.
Use three kinds of research:
Cite at least one scholarly source on presidential or congressional responses to the Court.
Did the backlash change anything? Did the president enforce the decision, resist it, or evade it? Did Congress pass any of the bills? Decide whether your case shows a Court as weak as Hamilton described, or stronger than he expected. Draw on Federalist 78 and Tocqueville.
Option 2
From the Cook list of "tossup" or "lean" House and Senate races, pick one incumbent running for reelection. Investigate whether the prospect of losing has changed how that official represents constituents. Has electoral pressure made the incumbent more responsive, or chiefly changed the campaign’s message? Focus on one issue. Compare the incumbent’s earlier record with campaign actions and statements. Look for changes in votes, policy positions, constituent service, or public appearances. Distinguish changes in conduct from changes in emphasis. Use Publius and Tocqueville’s discussion of elections and democratic government, as well as other class materials, to assess how elections hold officials accountable.
Begin with the incumbent’s official (House, Senate)and campaign websites. Check claims against legislative records and independent reporting, especially local coverage. Use earlier news stories and archived webpages to establish what the incumbent said and did before the campaign. (At least three sources must date from after September 1, 2026.) A competitive race alone does not prove that fear of defeat caused a change: look for evidence connecting the pressure to the official’s conduct.
Requirements
Research paper
For next time:
Juries invest each citizen with a sort of magisterial office; they make all men feel that they have duties toward society and that they take a share in its government. By making men pay attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.
Juries are wonderfully effective in shaping a nation’s judgment and increasing its natural lights. That, in my view, is its greatest advantage. It should be regarded as free school which is always open and in which each juror learns his rights, comes into daily contact with the best-educated and most-enlightened members of the upper classes, and is given practical lessons in the law, lessons which the advocate’s efforts, the judge’s advice, and also the very passions of the litigants bring within his mental grasp. I think that the main reason for the practical intelligence and the political good sense of the Americans is their long experience with juries in civil cases.
In all bodies, those who will lead, must also, in a considerable degree, follow.
The House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it. I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.
WHAT IS THE PERSONAL SIDE OF CONGRESSIONAL SERVICE?
As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.
BUT DOES THE SYSTEM WORK WITH POLARIZED AND NATIONALIZED PARTIES?
There are bipartisan bills: Franken and service dogs
Presidents and Emergency Powers
Governors actually have primary responsibility.
Now, it is this clear perception of the future, based on judgment and experience, which must often be lacking in a democracy. The people feel more strongly than they reason; and if present ills are great, it is to be feared that they will forget the greater evils that perhaps await them in case of defeat (p. 223).
[The] great privilege enjoyed by the Americans is not only to be more enlightened than other nations but also to have the chance to make mistakes that can be retrieved (p. 225).
For Wednesday, Franken, Boehner, Underwood.
On March 8, 1983, President Reagan spoke to the National Association of Evangelicals in Orlando, He expressed his views on the Soviet Union, famously calling it an "evil empire." He defended the Judeo-Christian traditions against the Soviet Union's totalitarian leadership and lack of religious faith, saying that these differences were at the heart of the conflict between the two nations.
This document makes clear that Reagan did not simply read the words before him: he played a very active part in writing the speech itself. One amusing sidelight: speechwriter Tony Dolan included a spurious quotation from Alexis deTocqueville -- which Reagan changed:
Federalist 48: The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.
Federalist 51 (again) [A]nd to render them, by different modes of election and different principles of action, as little connected with each other as their common functions and their common dependence on the society will admit. An example from an article by Gov 20H alum Hans Nichols
SECTION 1
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
SECTION 2
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen..
Federalist 57: Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other
Persons.Akhil Amar on the Three-Fifths Clause:
The radical vice of Article I as drafted and ratified was that it gave slaveholding regions extra clout in every election as far as the eye could see - a political gift that kept giving. And growing. Unconstrained by any explicit intrastate equality norm in Article I, and emboldened by the federal [3/5] ratio, many slave states in the antebellum era skewed their congressional-district maps in favor of slaveholding regions within the state. Thus the House not only leaned south, but also within coastal slave states bent east, toward tidewater plantations that grabbed more than their fair share of seats. ... The very foundation of the Constitution’s first branch was tilted and rotten.
And not just the first branch. The Article II electoral college sat atop the Article I base: The electors who picked the president would be apportioned according to the number of seats a state had in the House and Senate. In turn, presidents would nominate cabinet heads, Supreme Court justices, and other Article III judges.
Consequences of the Three-Fifths Clause. From William Lee Miller, Arguing About Slavery:
Five of the first seven presidents were slaveholders, for thirty-two of the nation’s first thirty-six years forty of its first forty-eight, fifty of its first sixty four, the nation’s president was a slaveholder. The powerful office of Speaker of the House was held by a slaveholder for twenty-eight of the nation’s first thirty-five years. The president pro tem of the Senate was virtually always a slaveholder. The majority of the cabinet members and — very important — of justices of the Supreme Court were slaveholders. The slaveholding Chief Justice Roger Taney, appointed by slaveholding President Andrew Jackson to succeed the slaveholding John Marshall, would serve all the way through the decades before the war into the years of the Civil War itself; it would be a radical change of the kind slaveholders feared when in 1863, President Lincoln would appoint the anti-slavery politician Salmon P. Chase of Ohio to succeed Taney.The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.
The House of Representatives shall chuse their Speaker and other Officers;and shall have the sole Power of Impeachment.
Section 3
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. [Seventeenth Amendment changed the procedure]
SENATOR DARLINE GRAHAM SUCCEEDED HER BROTHER.
Tocqueville (p. 200): "When one enters the House of Representatives at Washington, one is struck by the vulgar demeanor of that great assembly...A couple of paces away is the entrance to the Senate, whose narrow precincts contain a large proportion of the famous men of America."
Federalist 63: As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.
Now, it is this clear perception of the future, based on judgment and experience, which must often be lacking in a democracy. The people feel more strongly than they reason; and if present ills are great, it is to be feared that they will forget the greater evils that perhaps await them in case of defeat (p. 223).
[The] great privilege enjoyed by the Americans is not only to be more enlightened than other nations but also to have the chance to make mistakes that can be retrieved (p. 225).Congressional leadership.
In all bodies, those who will lead, must also, in a considerable degree, follow. They must conform their propositions to the taste, talent, and disposition, of those whom they wish to conduct: therefore, if an assembly is viciously or feebly composed in a very great part of it, nothing but such a supreme degree of virtue as very rarely appears in the world, and for that reason cannot enter into calculation, will prevent the men of talent disseminated through it from becoming only the expert instruments of absurd projects!
