Trump v. Barbara is one of the Supreme Court's most consequential decisions in recent memory. Most landmark decisions evolved as part of a long-line of cases. Slaughter followed from Seila Law which followed from Justice Scalia's Morrison dissent. Dobbs followed from Casey which followed from Roe. Students for Fair Admission followed from Grutter which followed from Bakke. On rare occasion, the Supreme Court decides an issue in an open field. Heller was one such case where the Supreme Court had to establish an entire new area of jurisprudence. Barbara is another. Both cases were based on text, history, and tradition, and both cases split 5-4 on the constitutional question.
The challenge of teaching Barbara is significant. There are many difficult pedagogical choices. First, where should it even go in the curriculum? It doesn't really fit in with discussions of the Fourteenth Amendment for the Due Process or Equal Protection Clauses. Second, how much of the case should be included? The entire decision stretched nearly 200 pages, and the dissents were more than triple the length of the majority opinion. Third, which issues should be covered? The history sweeps throughout different eras: the English common law, antebellum America, the Reconstruction period, and the late nineteenth century. Fourth, is it still necessary to cover Wong Kim Ark? According to the Chief Justice, the majority opinion flowed naturally from that precedent; the dissent countered that Wong Kim Ark doe not control. Fifth, should the assignment forward-looking, as efforts to restrict birthright citizenship continue?
Randy Barnett and I struggled through these questions for some time. Ultimately, we reached an arrangement to divide the case into six excerpts that stretch about sixty pages to be taught over two classes. But if a professor so chooses, three excerpts, spanning thirty pages, can be taught in a single class. The decision of which excerpts to assign will turn on what the professor seeks to cover. And we placed the case at the end of our chapter on the Fourteenth Amendment, immediately after Plessy. That was the most logical spot to include the decision.
