Pos 360

The Supreme Court and Property


Pos 360 The Supreme Court and Property

Course Description

This course offers an historical examination of the relationships among the law, the U.S. Constitution, the Supreme Court, and property rights. We will look at property both as a concept and a practice. The principal issues we will address are: 1) To what degree is property thought of as an individual right endangered by government regulation? 2) To what degree has government regulation been seen as necessary to protect the health, safety, and welfare of the community? and 3) What has been the role of the Supreme Court in dealing with these questions and, more broadly, what is the role of the Court in the U.S. political-economic system? In the process of assessing these questions we will look at how various individuals, groups, and classes have differed in their beliefs about these issues. We will utilize two principal mechanisms to examine these issues. First, we will read and analyze a variety of perspectives and approaches to thinking about the law and property.. Second, we will examine a series of Supreme Court decisions about property rights and governmental regulation. Supreme Court opinions are valuable pedagogical tools. The acquaint you with the idea of original documentation as a source for examining the development of public policy. They help us to learn techniques the Justices use in their legal reasoning and in the process improve our ability to think more clearly and analyze. Finally, the opinions offer insights into the language, philosophy, and values of the Justices and how these are related to the context in which Justices make their decisions. Throughout the course, I am interested in trying to assess the interrelationships among the law, the Court, and the broader social-economic context. Constitutional law does not develop in an intellectual vacuum. It is part of the complex process by which law both helps constitute society and at the same time reflects, or is constituted by, society.

This course also addresses certain departmental core requirements of our upper-division courses. It contains a research component. It introduces you to what my history colleagues call historiography, or in the discourse of political science, competing conceptual frameworks or theoretical approaches to a subject. Finally, it requires a significant amount of writing to allow me to assess your work and to permit you to demonstrate your competence and improve your skills.

Course Requirements

I try to promote and encourage class discussion and the development of analytical thinking skills. Formal lecturing is limited. In order to facilitate class discussion and analysis, as well as to prepare you for your written assignments, you are expected to attend class regularly and read the designated material prior to class. Your formal evaluation will be based on the following requirements. These are diverse assignments intended to develop your skills of analysis and writing.

1. Class Assignments and Participation (20%)

I will try to create a classroom setting where participation is informal and non- threatening. I am willing to talk to anyone who feels uncomfortable about participating in class or about the class as a whole. However, if you do not attend class regularly and participate in the discussion, it will be a long semester for all of us. Furthermore, I am not sympathetic, especially when final grades are due, toward students who do not make an effort.

To "encourage" class participation, students will be assigned reading material on most days we meet. You will be expected to analyze your assigned article/chapter or brief your assigned case according to the standards in Appendix A. This assignment must be written and turned in to me. You are expected to be present on the day you have material assigned.

2. In-class Exam (25%)

There will be an exam on October 16th. It will consist of short-answer questions and definitions to test your knowledge of certain basic material and concepts covered in the early part of the course.

3. Bibliographical Essay (25%)

You must write a bibliographical essay on a research topics from a list I will distribute early in the semester. The essay must comment on five books and seven scholarly articles on the topic you choose. If you have any questions about the appropriateness of the book and/or article you are considering, you should consult with me. Your essay is due on November 20th.

4. Take-Home Exam (30%)

Your take-home exam will ask you to address the issue of the role the Supreme Court has played in U.S. history in dealing with the issue of property rights. I will pass out the specific question the third week of the semester. You should write a 7-10 page essay responding to the question by 1) summarizing how each of the books we read addresses this issue; and, 2) expounding your own position on the question (and supporting your position by references to cases and books we read in class. You only can use course material for this assignment. Your essays will be graded on the basis of clarity, grammar, organization, logic, documentation, and comprehensiveness. The ability to make me smile with appreciation or say "hmm, this is pretty damn good won'ßt hurt either. The exam is due on December 12th.

We should view this course as a joint responsibility. I am very pleased to have you in class and I look forward to working with you throughout the semester. I will contribute as much as I can to make this a thought-provoking and stimulating course. But you also must fulfill your responsibility to take the course seriously and contribute as much as you can.

Required Reading


Chase, Anthony. 1997. Law and History: The Evolution of the American Legal System. New York: The New Press.

Ely, James W. Jr. 1998. The Guardian of Every Other Right: A Constitutional History of Property Rights. 2nd ed. New York: Oxford University Press.

Forbath, William E. 1991. Law and the Shaping of the American Labor Movement. Cambridge, Mass.: Harvard University Press.

McCloskey, Robert G. 1994. The American Supreme Court. Rev. ed. Chicago: University of Chicago Press.

Supreme Court Opinions

I will distribute a packet of edited Supreme Court opinions. The cases are listed in the “Reading and Discussion” section of the syllabus.


McCann, Michael W. 1984. "Resurrection and Reform: Perspectives on Property in the American Constitutional Tradition." Politics and Society 13: 143.

Singer, Joseph William. 1998. "Property." In David Kairys, ed. The Politics of Law: A Progressive Critique. 3rd ed. New York: Basic Books.

Simon, William H. 1998. "Contract Versus Politics in Corporation Doctrine." In David Kairys, ed. The Politics of Law: A Progressive Critique. 3rd ed. New York: Basic Books.

McUsic, Molly S. 1998. "Redistribution and the Takings Clause." In David Kairys, ed. The Politics of Law: A Progressive Critique. 3rd ed. New York: Basic Books.


Part 1. The Foundational Period, 1765-1810 (August 27th - September 20th)


Ely, Introduction, chapters 1-3
McCloskey, chapters 1 & 2
Chase, Introduction, chapters 1-2
Singer, "Property"
Marbury v. Madison (1803)
Fletcher v. Peck (1810)

Part 2. Establishing National Power and Facilitating Economic Development, 1810-1865

(September 25th -October 11th)


Ely, chapter 4
McCloskey, chapters 3 & 4
Chase, chapter 3
McCulloch v. Maryland (1819)
Dartmouth College v. Woodward (1819)
Gibbons v. Ogden (1824)
Charles River Bridge v. Warren Bridge (1837) Cooley v. Board of Wardens (1852)
Dred Scott v. Sandford (1857)


Part 3. From Laissez-faire Ideology to the Constitutional "Revolution," 1865-1937 (October 16th - November 13th)


Ely, chapters 5-7
McCloskey, chapters 5 & 6
Chase, chapter 4
Forbath, entire book
Simon, "Contract Versus Politics in Corporation Doctrine"
Slaughterhouse Cases (1873)
Munn v. Illinois (1877)
Santa Clara County v. Southern Pacific Railroad (1886)
Lochner v. New York (1905)
Hammer v. Dagenhart (1918)
United States v. Butler (1936)
Carter v. Carter Coal Company (1936)
West Coast Hotel v. Parrish (1937)
National Labor Relations Board (NLRB) v. Jones & Laughlin Steel Corp. (1937)
Steward Machine Company v. Davis (1938)

Part 4. The Corporatization of Property and the Modern Regulatory State, 1937 2001 (November 15th - December 6th)


Ely, chapters 8 & 9
McCloskey, chapters 7 - 9 and Epilogue
McCann, “Resurrection and Reform”
McUsic, "Redistribution and the Takings Clause"
United States v. Darby (1941)
Hawaii Housing Authority v. Midkiff (1984)
Garcia v. San Antonio Metro Transit Authority (1985)
U.S. v. Lopez (1995)
Printz v. U.S./Mack v. U.S. (1997)

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