POL 461H
Syllabus
Fall, 2007
This Honors course is intended to provide students with an intensive and an extensive understanding of the substantive Constitutional Law surrounding the institutions of national government – the Congress, the President, and the Judiciary – and the federal relationships between the national government and state governments. Although much of the development of these institutions and these relationships has been focused on political considerations, and of events and practices over the decades, the core elements of these topics is found in the U.S. Constitution and in the Supreme Court’s interpretation of the provisions of the Constitution. It will become clear that there are any number of questions about the powers and practices of these institutions that have not been addressed by judicial decisions. Yet, the Supreme Court, in particular, and some lower federal courts on occasions have addressed fundamental and intriguing issues relating to the structure and the operation of our government. These decisions and the doctrines they reflect will be the primary focus on this course. The end result of this work will be the development of a close and comprehensive understanding of U.S. Constitutional Law, and a rigorous ability to analyze and reason logically. (This end result is focused on thinking and learning how to think somewhat differently than most undergraduate course work.)
This course will involve a great deal of reading. The required books are listed below and these are available at University Bookstore. Students should purchase these at the outset of the semester, and assignments in these will be made throughout the term. This casebook and the accompanying material provide the primary sources – court opinions – upon which constitutional law is based. Some of the cases that are assigned for reading and discussion are not contained in O’Brien. These will be available on-line, using the Library’s subscription to Lexis-Nexis. (Access to Lexis-Nexis will be demonstrated in class.) While the core materials are contained in David O’Brien’s casebook, but the other, required materials amplify these cases and will flesh out the operation of the Court. In addition, a number of journal articles will be assigned. These secondary items will be extensive and they will provide alternative perspectives on the issues that are covered in the course.
Required
Books
David O’Brien, Constitutional Law and Politics: Struggles for Power and Governmental Accountability. (Norton, 2005).
David Currie, The Constitution of
the United States: A Primer for the People. 2d ed.(
Richard Fallon, The Dynamic
Constitution: An Introduction to american constitutional law. (
John Orth, How Many Judges Does It take to make a Supreme Court: And Other
essays on Law and the Constitution. (University Press
of
Recommended Materials
These include a variety of readings, both books and articles that provide additional views on various aspects of constitutional law and development. These will be supplemented throughout the semester.
N.B. David Currie is a leading contemporary constitutional scholar. The multiple volumes list immediately below reflects an incredible, detailed, comprehensive examination of the history of Constitutional Law in this country. The work is the penultimate work in Constitutional history.
David Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, (University of Chicago Press, 1985).
David Currie, The Constitution in the Supreme Court: The Second Century, 1888-1986, (University of Chicago Press, 1990).
David Currie, The Constitution and Congress: The Federalist Period, 1789-1801, (University of Chicago Press, 1997).
David Currie, The Constitution and Congress: The
Jeffersonians, 1801-1829, (
David Currie, The Constitution and Congress: Democrats and
Whigs, 1829-1861, (
David
Currie, The Constitution and Congress:
Descent Into The Maelstrom, 1829-1861, (
When Justice Oliver Wendell Holmes,
Jr. died in 1935, he gave the residual of his estate, some $230,000 to the
Julius Goebels, Jr., History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, Vol. I (Macmillan, 1971).
George Haskins & Herbert Johnson, History of the Supreme Court of the United States: Foundations of Power, John Marshall 1801-1815, Vol. II (Macmillan, 1981).
G. Edward White, History of the Supreme Court of the United States: The Marshal Court and Cultural Change, 1815-1835, Vol III-IV (Macmillan, 1988).
Carl Swisher, History of the Supreme Court of the United States: The Taney Period, 1836-1864, Vol V (Macmillan, 1974).
Charles
Fairman, History
of the Supreme Court of the United States: Reconstruction and
Charles
Fairman, History
of the Supreme Court of the United States: Reconstruction and
Charles Fairman, History of the Supreme Court of the United States: Five Justices and the Electoral Commission of 1877, Supplement to Vol VII (Macmillian, 1988).
Owen
Fiss, History of the Supreme Court of the
Alexander Bickel & Benno Schmidt, Jr., History of the Supreme Court of the United States: The Judiciary and Responsible Government, 1910-1921, Vol IX (Macmillan, 1984).
Robert Post, History of the Supreme Court of the United States: Constitutional Rights and the Regulatory State, 1921-1930, Vol X ().
Richard Friedman, History of the Supreme Court of the United States: The Crucible pf the Modern Constitution, 1930-1941, Vol XI ().
William
Wiecek, History
of the Supreme Court of the United States: The Birth of the Modern
Constitution, 1941-1953, Vol XII (
Course Grades
The grades for this course will be based on a variety of oral and written work. While each of these components is listed and explained below, a special word about student oral contributions in class is important. Class participation is a significant part of the grade. However, that participation is much more structured and formal than the “usual” class participation component of grades. This requires students to be carefully prepared for each class and to understand the materials that are under discussion. The questions that are posed by the instructor may appear to be rhetorical, but these hypotheticals are carefully designed to move students away from description to deductive analysis of concepts and doctrines in constitutional law. The responses that students provide should not be their opinions, but rather the product of their thinking about the doctrine and the hypothetical that is presented by the question.
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:
|
Grade Component |
Weight |
|
(1) Class Participation |
40% |
|
(2) Class Project |
40% |
|
(3) Written Assignments |
20% |
|
Total |
100% |
Class participation is composed of 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 and other assigned materials, 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 the class participation portion of the Final Grade.
Students are expected 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 and other subjects, 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.
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, research, and writing 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.) This will be an end-of-term research and analysis project, and there will be various items “due” in connection with the Project throughout the semester. As a result students are strongly encouraged to keep a close set of notes relating to everything they read and learn (or even think about) in connection with this course.
The Written Assignments will require students to complete a large 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 submissions. Come to class and hand in the assignments at the beginning of the class period. Print two copies of each of these written assignments so that during class a student can mark or write on their copy of the assignment (i.e., take notes about the discussion of each case). It is important that students develop the ability to write clearly, concisely, directly, and analytically, during the semester. That is the purpose of these daily writing assignments. 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. The name of the student is to be 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. This set of writing is a cumulative effort and students will become much better at this kind of focused and explicit writing during the course of the semester.
_______________________________________________
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 by illness, other obligations or the like. Those are all acceptable as explanations, and it is not necessary for students to explain absences to the instructor. However, each student remains responsible for all the material covered in all class sessions. That includes announcements and assignments that are made in class, and submissions due in class. Students should get assignments, announcements, and other class items from fellow students (or from the course website) for days if they are absent. For that purpose it is very strongly recommended that each student develop a trusted relationship with at least one other class member who can be relied on to relay course information. 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. 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. This level of engagement for courses is quite intensive, but that is essential for developing the understanding of the materials, a professional work ethic, and rigorous intellectual mastery of the issues involved here. If a student is called on at that class session, those responses will be graded. Absences and unprepared students 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. The class participation grade can be seriously damaged by absences from class.
Course Topics
The sequence of reading assignments in O'Brien are indicated below. The first several class periods will be devoted to discussing the materials presented in Chapter 2 of O"Brien, Baum, and Orth. As a result, students are responsible for reading these materials immediately and they will be expected to master the material covered in these 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 four (4) 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. WARNING: students will often use another, electronic source (other than Lexis-Nexis) for cases. While Lexis-Nexis is not a very good system, it is the best we have, and students should NOT rely on another electronic source!
N. B. doing legal
research and finding court cases using legal citations is outlined
systematically in O'Brien.
This begins on p. 1033 of O'Brien.
Read those materials carefully at the outset of the course.
N.B. If a case is listed below in bold, with the citation, the student is expected to read the full opinion of the case in a law reporter. The other cases, without bolding or citations are contained in O’Brien and should be prepared from that source.
Introduction
O'Brien,
Baum, entire
Orth, entire
I. Judicial Power
O'Brien,
[N.B. students should read the materials preceding and following the two court opinions that are contained in this chapter of O’Brien (Marbury and Cooper) 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 there may be no "Writing Assignment” for some of these items.
For purposes of the class discussion, students should know exactly what arguments are made in each of these items, particularly as the arguments relate to institutional competence. 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 only for the items marked with asterisks (*). The remainder of these materials should be read carefully and exhaustively, in order. The class discussion will focus on each of these, in the order they are listed above.
II. Executive Power
O'Brien,
§
§
Dames & Moore v. Regan
§
§
§
§
Goldwater v. Carter
§
§
The Prize Cases
§
Ex Parte Milligan
§
Korematsu v.
§
Rasul v.
Bush
§
Hamdi v. Rumsfeld
§
Rumsfeld
v. Padilla, 352 F.3d 695 (2d Cir. 2003). And 542
§
Hamdan v. Rumsfeld, 126
§
§
New York Times v.
§
§
Myers v.
§
Humphrey's Executor v.
§ Bowsher v. Synar
§ Morrison v. Olson
§
Schechter
Poultry Corp. v.
§ Industrial Union Dept of the AFL-CIO v. American Petroleum Inst
§ I.N.S. v. Chadha
§
Mistretta
v.
§
§ U.S. v. Nixon
§ Articles of Impeachment against Richard Nixon*
§
§ 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 result, students are to be well-prepared on these items even though
nothing written is required.
III. Legislative Power
Section A. Membership and Immunities
§ Powell v. McCormick
§
U.S. Term Limits Inc. v.
§
Gravel v.
§ Eastland v. Servicemen's Fund
§
§
Department of Commerce v.
§
Dept of Commerce v.
§
Section B. Investigatory, Contempt, and Impeachment Powers
§
Watkins v.
§
Barenblatt
v.
§
Gibson v.
§
Walter Nixon v.
Chapter 6 Congress: Legislative, Taxing, and Spending Powers
Section A. The Classic
View of Congress's Legislative Powers
§
McCulloch
v.
§
Gibbons
v.
Section B. From Legal Formalism to the New Deal Crisis
·
·
Swift
& Co. v.
·
Southern Ry. Co.
v.
·
The
·
Hammer
v. Dagenhart
·
Adkins v. Children's
Section C From the New Deal Crisis to the Administrative State
§
N.L.R.B.
v. Jones and Laughlin Steel Corp.
§
§
Wickard
v. Filburn
§
Heart
of Atlanta Motel v.
§
Katzenbach
v. McClung
§
§
§
City
of
§
§
Gonzales
v. Raich, 545
§
Gonzales
v.
Section D. Taxing and Spending.
·
McCray
v.
·
Bailey
v. Drexel Furniture, 259
·
Steward
Machine v.
·
·
·
IV.
State Government Power and Limits on State Power
Reading and case assignments
for this section will be made later.