POLITICAL SCIENCE 461
CONSTITUTIONAL LAW I
FALL, 2006

 William P. McLauchlan

 Office BRNG 2248

 The purposes of this class are to:

(1) acquaint students with several substantive areas of American Constitutional Law dealing with the powers of the federal government and the states, and the relationships among national governmental institutions,
(2) teach students analytic skills focusing on logical and other legal modes of reasoning,
(3) develop students’ communication skills, both written and oral , and
(4) provide students with a perspective on the roles played by the United States Supreme Court in American politics.

The text materials required for this course are available only from the University Bookstore.  This text should be purchased at the outset of the semester.  If students prefer, they are welcome to acquire the materials from another (web) source, such as amazon.com, bn.com or powells.com.  However, be sure you have the readings materials for the first day of class.  Students must be certain they have the correct edition of the text materials and they must be able to start working through these materials on the first day of class -- 22 August 2006.  The required casebook is:

David M. O'Brien, Constitutional Law and Politics: Struggles for Power and Government Accountability, 6th ed. Vol. I.  (Norton, 2006).  Paperback

Each student is responsible for:

1) reading the appropriate materials before EACH class meeting (some of these materials will NOT be in the casebook, and some of them will be assigned in class, on the spur of the moment),
2) attending  each class, prepared to discuss the cases and the other assigned materials, and
3) preparing the assigned written materials for submission at each appropriate class meeting.

Grades

The grades for this course will be based on a variety of oral and written work.  This work will be completed throughout the semester, starting nearly during the first days of the semester and ending with the Final Examination.  This work includes: (1) Prepared, Oral Participation in class, (2) a Class Project, (3) a Midterm Examination, (4) a Final Examination, and (5) regular (i.e., daily) Written Assignments.  The relative weights of these grades are as follows:
 

*  N.B. If the score for a student's Midterm Examination is NOT higher than the score on their Final Examination, then the Midterm will NOT count and the Final Examination will count as 20% of the Final Grade.  If the Midterm Examination score is higher than the Final Examination score, then the Midterm will count 5% of the Final Grade and the Final Examination will count 15%.  That means the Midterm Examination will NOT “hurt” (or lower) a student's final grade, but it can be used to help a final grade.  The Midterm must be taken seriously.  (A student who does NOT “take” the Midterm Examination (i.e., complete and submit a serious midterm exam on time) will be penalized by receiving a zero for 10% of their final grade and the Final Examination will be given a 10% weight in the Final Grade.)  The value and purpose of the Midterm Examination are to provide students with a preliminary assessment of the development of their analytic thinking skills, with no risk to their grade.   However, it is essential that the student complete the Midterm examination if it is to serve that purpose.

 Class participation will focus on daily, in-class discussions of the assigned materials (particularly the cases) covered in the casebook and hypotheticals presented in class.  Individual student responses to questions posed in class will form the basis of this part of the Grade.  The process involves the instructor "calling on" (questioning) individual students a variety of times during (throughout) the semester.  These discussions will be based on the assigned readings from O'Brien, plus hypotheticals that emerge from the cases or the discussion outlined in the casebook.  The quality of each student's response to those questions will be graded.  Class attendance is required, and each student will be expected to be prepared to discuss assigned class materials every day in class.  Voluntary questions and comments during class are always welcome when they relate to the cases and the materials under discussion.  However, these voluntary contributions WILL NOT be graded for purposes of this part of the Final Grade.

Students are expended to attend all classes, prepared to discuss the assigned reading materials.  That requires two things of each student: (1) continual, advanced preparation of all the assignments (both reading and writing assignments), and (2) regular and sustained class attendance.  Preparation of assignments may involve using Lexis-Nexis or doing library (paper) research as well as reading the cases and other materials that are in the Casebook (O'Brien).  Preparation will often require more effort and time than just “going through” the assigned materials.  This preparation requires several other items.  First, students are expected to read extra material – additional court opinions, statutory provisions, and the like when they are relevant.  Second, "reading" means understanding, not just looking at the words quickly.  The understanding of concepts, logical reasoning, and technical materials contained in court opinions, statutory provisions, constitutional provisions and the like, will require careful, slow reading.  That may be frustrating, but students must learn these techniques and skills to master the materials for this course successfully.  It is important to begin gaining these skills at the very outset of the semester, so that one does not become “lost” or way behind at some later point during the term.  The reading in this course becomes more complicated throughout the semester.  Third, "reading" and understanding is not just for one day at a time.  The discussions of cases will require students to remember the cases and the concepts from day to day and week to week.  Just because the class discussion of a case is over and the discussion has moved to later cases, that does not mean the earlier material is not relevant or even crucial for a later case discussion.  That means students must be able to recall these materials throughout the course.  Students will be randomly called on in class to discuss cases or other assigned materials. 

As noted already, Class attendance is required for this course and absences from class, whatever the reason for the absence, are NOT excused.  Such absences can be explained, but students remain responsible for all the material covered in class.  That includes announcements and assignments that are made in class, such as submissions due in class.  It is not necessary for students to explain absences to the instructor.  Students should pickup assignments, announcements, and the like from fellow students (or from the course website) for days if they are absent.  The instructor will NOT repeat announcements or discussions for the benefit of students who do not attend class or did not "hear" what was said in class.  Students should make other arrangements for recovering the materials they miss.  All Students are to be prepared on all the materials for all classes so that they can answer questions and so they can follow the class discussion even if they are not called on for a particular question.  Absences from class will be graded if the student is called on at that class session, just as students who are not prepared for class will be graded when called on to answer questions.  That really means that students should attend class prepared every day, and they are responsible for all the materials covered in the class throughout the semester.  Their class participation grade can be seriously damaged by absences from class.

When a student attends class, it is presumed that the student is prepared to discuss the material for that day.  Students must not engage in "free-riding."  The lack of preparation by any student, for any day, will cost them.  Even if they are not called on to discuss materials or answer questions, they will not understand the discussion if they have not prepared.  They will not be able to follow the discussion.

 The Class Project will be an extensive research project that requires thinking, writing, and research efforts on the part of each student.  A separate document relating to this assignment will be distributed later in the semester.  Due dates for the project will also be announced later.  (The Project will be due late in the semester.)

 The Written Assignments will require students to complete a number of short, daily writing efforts throughout the semester.  Students must complete and submit these at various class meetings as they become due.  The purpose of these assignments is to insure student preparation for class each day and to aid student develop of efficient writing skills.  Students need to learn to write clearly, concisely, and quickly, as well as regularly.  Students will prepare these written assignments as announced in class.  The assignments will generally involve brief, typed documents. LATE SUBMISSIONS WILL NOT BE ACCEPTED.  These assignments must be submitted in person -- no electronic submissions and no friends dropping them off.  Come to class and hand in the assignments.  It is important that students develop the ability to write clearly, concisely, directly, and analytically, during the semester.  These assignments are to be submitted in typed, single-spaced form, these must contain the name of the case and the complete (correct) citation to the case as well.  Your name on each page of each assignment. To complete this writing process requires students to proceed through each daily writing assignment, and complete each of them throughout the entire semester, up until the final assignments, made very later in the semester.

_______________________________________________

 The sequence of reading assignments in O'Brien are generally indicated below.  The first week or ten days of the course will be devoted to discussing the materials presented in Chapter 2 of O"Brien.  As a result, students are responsible for reading these materials immediately and they will be expected to master the material covered in these two assignments before Thursday, August 24th. After the discussion of the legal "context" in which the Supreme Court operates, the course will turn to the substantive materials (the cases) in O'Brien.  Daily assignments of these materials will NOT be done in the form of announced reading assignments.  The order of these materials and the cases that will be discussed in class are indicated in the entries below.  Students will be expected to keep up with the progress of the class.  (The pace of these class meetings will be very slow at the outset of the semester, but the speed of class discussions will pick up later in the semester.)  The safest approach to (written) submissions is to be three (3) cases ahead of where we finish each class period.  Note that some of the cases listed below are listed with their full citation.  These cases are NOT contained in O'Brien's casebook (or O'Brien does not provide enough information about these cases) so they need to be read in their entirety either electronically or in the Library.  A few of these full-citation cases are contained in O'Brien, but students should read and master the full opinion in these cases if the complete citation is given.  That means these cases will need to be read from other sources - either in the bound volume of the Supreme Court Reports OR from Lexis-Nexis on the web, which is linked to the frontpage of this website.
 

Order of Topics Covered this Semester. (The sequential listing of cases to be discussed on each topic will be listed below from time to time.)

N. B. doing legal research and finding court cases using legal citations is outlined systematically in O'Brien.  These begin on p. 1033 of O'Brien. Read those carefully at the outset of the course.

 

INTRODUCTION:  Read the entire United States Constitution at the outset of the course.  Specific provisions of the Constitution will be examined throughout the semester, but reading the entire document will acquaint students with a surprising variety of items – some items that in the Constitution and some that are NOT in the Constitution.  In addition, the following material will be discussed briefly at the beginning of the semester and students are expected to know the substantive matter covered in these three items
N.B. the following list of cases are somewhat tentative and the list for some segments of the course may change during the semester.

Introduction

O'Brien, Ch. 2

I. Judicial Power

O'Brien, Ch. 1
 
 
[N.B. students should read the materials preceding and following the two court opinions that are contained in this chapter closely and be prepared to discuss the points made in each of them in detail.  The following materials should be mastered and prepared for discussion even though the "Writing Assignment for these items is not assigned. –

• Kent's Introductory Lecture
• Virginia and Kentucky Resolutions
• Marbury v. Madison (1803)*
• Eakin v. Raub (1825)
• Jackson's Veto Message
• F.D.R.'s Radio Broadcast
• Cooper v. Aaron (1958)
• Dickerson v. U.S., 530 U.S. 428 (2000).*

For purposes of the class discussion, students should know exactly what arguments are made in each of these items, and be able to outline the arguments in class discussion.  Be able to compare these arguments or theses presented in each reading.

* N.B. The written holdings for this first section of the course should be done for the items marked with asterisks (*).

II. Executive Power

 

O'Brien, Ch. 3 & 4

§         U.S. v. Curtiss-Wright Corp.

§         Dames & Moore v. Regan

§         Sale v. Haitian Centers Council Inc.

§         Missouri v. Holland

§         U.S. v. Pink

§         Goldwater v. Carter

§         U.S. v. Alvarex-Machain

§         The Prize Cases

§         Ex Parte Milligan

§         Korematsu v. U.S.

§         Rasul v. Bush

§         Hamdi v. Rumsfeld

§         Rumsfeld v. Padilla, 352 F.3d 695 (2d Cir. 2003).  And 542 U.S. 426 (2004).
Hamdan v. Rumsfeld, 2006 US LEXIS 5185 (2006).

 

§         Youngstown Sheet and Tube Co. v. Sawyer

§         New York Times v. United States

§         United States v. United States District Court, 407 U.S. 297 (1972)

§         Myers v. United States

§         Humphrey's Executor v. United States

§         Bowsher v. Synar

§         Morrison v. Olson

§         Schechter Poultry Corp. v. United States

§         Industrial Union Dept of the AFL-CIO v. American Petroleum Inst

§         I.N.S. v. Chadha

§         Mistretta v. U.S., 488 U.S. 361 (1989)

§         Clinton v. City of New York

§         Blakely v. Washington, 542 U.S. 296 (2004)

§         U.S. v. Nixon

§         Articles of Impeachment against Richard Nixon*

§         Clinton v. Jones

§         Articles of Impeachment against William Clinton*

 

* These two items need not have holding prepared for them.  However, they will be discussed in detail at the indicated points in the materials.  As a Results students are to be well-prepared on these items.

  

 

III. Legislative Power

 

Ch 5; Section A. Membership and Immunities
Powell v. McCormick
U.S. Term Limits Inc. v. Thornton
Gravel v. U.S.
Eastland v. Servicemen's Fund
Hutchinson v. Proxmire
Department of Commerce v. Montana, 503 U.S. 442 (1992).
Dept of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999).
Utah v. Evans, 536 U.S. 452 (2002).

Section B. Investigatory, Contempt, and Impeachment Powers
Watkins v. U.S.
Barenblatt v. U.S.
Gibson v. Florida Legislative Investigation Committee
Walter Nixon v. U.S.

 

Chapter 6 Congress: Legislative, Taxing, and Spending Powers

 

Section A. The Classic View of Congress's Legislative Powers
McCulloch v. Maryland
Gibbons v. Ogden

 

Section B. From Legal Formalism to the New Deal Crisis

U.S. v. E.C. Knight Co.
Swift & Co. v. U.S., 196 U.S. 375 (1905).
Southern Ry. Co. v. U.S., 222 U.S. 20 (1911).
The Shreveport Rate Case, 234 U.S. 342 (1914).
Hammer v. Dagenhart
Adkins v. Children's Hospital of D.C., 261 U.S. 525 (1923).

 

Section C From the New Deal Crisis to the Administrative State

N.L.R.B. v. Jones and Laughlin Steel Corp.
U.S. v. Darby Lumber Co.
Wickard v. Filburn
Heart of Atlanta Motel v. U.S.
Katzenbach v. McClung
U.S. v. Lopez
Reno v. Condon
City of Boerne v. Flores
U.S. v. Morrison

Gonzales v. Raich, 545 U.S. 1 (2005)

Gonzales v. Oregon, 126 S.Ct. 904 (2006).

 

Section D. Taxing and Spending.

McCray v. U.S., 195 U.S. 27 (1904).
Bailey v. Drexel Furniture, 259 U.S. 20 (1922).
Steward Machine v. Davis
U.S. v. Kahriger
U.S. v. Marchetti, 390 U.S. 39 (1968).
South Dakota v. Dole

 

IV. State Government Power and Limits on State Power

 

Reading and case assignments for this section will be made later. 

 

V. Economic Rights and American Capitalism

 

Reading and case assignments for this section will be made later. 

 

 

 

 All of the chapters and materials in the casebook may NOT be covered this semester.  The order of the subjects is indicated above.  If a chapter or a section is assigned in class or on the web assignment page, then students are responsible for preparing the appropriate writing assignments at the appropriate (indicated) times.  These Writing Assignments are important, and each student is responsible for submitting each and every one of these when (the day) they are due.  That will require careful, constant attention to class reading and writing assignments.  The pace of discussion and assignments will vary over the semester – slow at the start of the term but speeding up toward the end of the semester.  The best practice would be to prepare at least 3 cases ahead for each class period.

 

N.B. Late submissions of written assignments will not be considered, read, or graded.  Time is of the essence for these materials and such late submissions will serve no educational purpose.  Students are to submit the written assignments in person in class, NOT electronically.
 

Class and Learning

 

 Students should note that progress or improvement in the course throughout the semester is a very important indicator of how much and how well the student has learned.  The Midterm Examination is the first, formal indication of student progress.  However, by that point in the term all students will have been called on and asked to participate in class.  Students should not be concerned if their early work (written and oral) is not “perfect.”  This course involves a learning process (a “learning curve”) and the course involves a new way of thinking and analyzing.  Students are expected to learn a good deal during the semester, rather than to know a great deal at the beginning of the term.  If students do not think they are “learning” during the semester, they should talk with the instructor about this concern.  Students should also talk with the instructor if they do not understand something.  They should expect to engage in any number of informal discussions with the instructor or with other students throughout the semester about the course material.  Learning requires a substantial commitment on the part of the student, and students must be prepared to invest time and effort in this process.  Otherwise, the learning will not be satisfactory but that disappointment can be prevented.
 
 

The Web

The webpage for this course will be used heavily and frequently.  You can reach it by going to the Department's WebPage.  Then you should select UNDERGRADUATE PROGRAM, then COURSE MATERIAL,  Finally, selecting and clicking on the correct course link (under the instructor’s name, linking to POL 461) will get you to the materials for this course.  In addition, the material used in previous Fall’s courses is also, separately available at the same website.  That permits students to see prior Final Examinations, Class Projects, and the like from earlier Fall Semesters.  That may provide a sense of what the course has been like in the past.  Students must pay particular, regular attention at least to the Announcement Page and the Writing Assignment (Writing) pages for the current course.  These should be checked by everyone at least once a day, since they will be updated frequently (perhaps on short notice) and students are responsible for getting that information from the “net.”  Any change of these pages will be noted by a changed DATE on the Index Page for this course.  There are substantial internet research capabilities for this course that are linked to the page and students should expect to use those links and materials frequently throughout the course.  The reading and understanding of these course materials require much more than just reading the casebook.  Exploring statutory wording, lower court opinions, or relevant, earlier (or later) Supreme Court decisions (precedent) electronically is essential to mastering the materials for this course.  Students will be expected to explore these on their own, in preparation for class.

There will be other web usage this semester.  These can involve reading other cases and  statutory materials.  Student web skills are presumed and if a student lacks that experience or confidence, they should talk with the instructor at the very beginning of the course.  That is because later, when class discussions require it or when the Class Project requires extensive research, students will not be stymied because they are not "intimately familiar" with the internet.

One last but essential portion of the course that students are responsible for understanding at the outset of the semester and following throughout the term is the course and University's policies regarding academic integrity.  Each student is expected to read and understand these materials.  These are also linked to the frontpage of the course website.