PLSC 407: Constitutional Law

In this course, we will study the Supreme Court and constitutional law from a variety of perspectives.  We will study the court in its historical and political context, as one actor among many.  We will study the court as a unique institution, exploring its internal workings and the style of reasoning it applies.  We will also take a philosophical approach and explore the meanings and implications of the court’s jurisprudence on fundamental rights and liberties.

There are four objectives to this course. First, you should develop an understanding of the role of the judiciary in shaping our society and our system of government. Second, you should become familiar with the most important principles of constitutional law. Third, you should develop the ability to summarize court cases into concise legal briefs. Fourth, you should develop an ability to use precedents, logic and evidence to evaluate Supreme Court decisions.

Throughout the course, I would like you to think about this general question:  Does the law in America serve as a force for justice, democracy, and liberation or as a bulwark of privilege, oligarchy, and oppression?

Learning Outcomes:

Students will:

1. Demonstrate critical thinking, writing and research skills with respect to Supreme Court jurisprudence.

2. Demonstrate knowledge of approaches to constitutional interpretation.

3. Apply methods of Constitutional interpretation to specific Supreme Court cases.

Required Texts:

Select texts are available on Blackboard.

Texts IN HARD COPY must be brought to class on the day they will be discussed.  Students will be considered absent if they do not bring the reading to class on the day it is discussed.

General Information:

This course will emphasize critical reading and analysis of the assigned texts.  Class meetings will be discussion-oriented, revolving around the presentation and adjudication of cases by all members of the class.  Two to four students will present cases, while the rest of us question them and decide the case.  All of this means that readings must be completed before the class meeting in which they will be discussed.  When you are doing the readings, keep in mind that you will be expected to participate in the debates outlined in the readings, reject some positions, embrace others, and defend the choices you make. During class discussion you are not expected to have fully developed points of view about the course materials. But you are expected to participate. No one will be penalized for being wrong or imprecise, for expressing uncertainty or frustration, for changing their minds. But it should be clear that you are trying, that you have done the readings and are working toward a mastery of the material.

Questions: None of us, myself included, knows everything about the topics of this class. It is our responsibility to ask others who may know the answer, either in class, in office hours, or over dinner. I expect that you are learning the material, not that you know it. As much as possible, try not to be shy or embarrassed about what you don’t yet know. The biggest failure in learning any material, in college or in life, is to fail to ask questions about things you do not know.

Availability:  I expect that all of you, either alone or in groups, will contact me throughout the semester. I am almost always available to discuss the course material or other life issues.

Laptops and Cell PhonesLaptops may not be used in class.  Cell phones must be turned off AND put away during class meetings.  Students who use laptops or cell phones without explicit permission to do so will be considered absent.

Evaluation Criteria:

Grades will be based on the following:

  • Think Pieces: 10%
  • Quizzes: 10%
  • Two legal briefs: 10% each
  • Midterm: 20%
  • Final: 30%
  • In-class participation: 10%

Both exams and both legal briefs must be completed to pass this course.

Think Pieces:  All students are responsible for writing one double-spaced page on one or more topics in that week’s readings (i.e. the readings scheduled for the following day’s class meeting).  The think pieces will be due by 7:00 pm on Wednesday (uploaded to SafeAssign on Blackboard).  This is a very firm deadline.  I need to have time to read the papers before we meet on Thursday.  No think piece is required for the week of the midterm or the weeks when written briefs are due.

The think pieces will be assessed on a scale of 1-5.  A “3” indicates that the student has accurately grasped the reading.  A “4” is indicative of a grasp of the reading with some critical reflection.  A “5” indicates critical reflection as well as specific reference to the text.  A “2” indicates that the answer misrepresents the text, while a “1” indicates that the question has not been answered.  At the end of the semester the grade for quizzes will be calculated as follows:

  • mostly 4s and 5s = A
  • mostly 3s = B
  • mostly below 3s = C, D, or F

Quizzes:  Quizzes will be given periodically.  I will write one question on the board at the end of class.  This question will reflect our discussion and/or the assigned reading for the day.  Students will have ten minutes to answer this question.  The quizzes will be assessed on the same scale used for the think pieces.

Supersized Legal Briefs: Each student must prepare two legal briefs (for guidelines on how to write a brief, see pp. 727-8 of the casebook).  The briefs should be about 1500 words in length.

The cases we read are always abridged.  This means that, when you compose your legal briefs, you will generally need to go somewhat beyond the scope of the course materials.  See p. 727 of the casebook and our Blackboard site for internet resources.  You might also look at law school casebooks or secondary literature on the cases you are researching.

All legal briefs must be submitted to SafeAssign on Blackboard by 11:59 pm on the day the case is argued. Late papers will be penalized at the rate of one grade per day.

These briefs are “supersized” because, in addition to completing the standard elements of a legal brief, students must answer the following five questions.  You should devote approximately 500 words to the traditional brief and 1000 words to these questions:

  1. What are the relevant passages from the Constitution?
  2. Were separation of powers issues and/or federalism implicated in the case?  If so, how?
  3. What method(s) of legal interpretation were applied in the case?
  4. What were the relevant precedents and how were they interpreted?
  5. What was being balanced? (rights v. public welfare, rights v. other rights, etc.)

For each case you brief, you will also make oral arguments in class. The other class members and I will sit as the court, hearing your arguments and asking questions.  For this assignment, students will sometimes work alone, sometimes in groups with two students arguing as a team on each side of the case.  You will be assessed both on your presentation skills and on the brief.  Attendance at the class sessions at which you will present is mandatory and cannot be rearranged or made-up if missed.

When cases are presented in class, each legal team will be given 5-8 minutes to present their principal arguments.  Following each presentation, there will be a 5-10 minute question and answer period where the court will pose questions.  After both initial presentations are complete, each side will be given 3-5 minutes for a rebuttal.  Following rebuttals, the court will deliberate and then decide the case.  Though you are required to write two briefs, you may be asked to make oral arguments for a third case.

Exams: Exams will be a combination of essay, short answer and multiple choice questions.

Attendance and Participation:  Attendance and punctuality are basic requirements for an effective discussion. Beyond that, each student’s frequency and quality of contribution to the class discussion will be assessed and reflected in the class participation score.  Students who miss more than two classes will automatically suffer a deduction of one-third of a grade (e.g. a B+ becomes a B).  Students who miss more than seven classes will suffer a full grade deduction (e.g. a B+ becomes a C+).  Students who are in class but do not have the assigned reading IN HARD COPY will be considered absent.

Schedule of Meetings and Required Readings:

February 8

INTRODUCTION

February 15

Judicial Interpretation

Reading: Epstein and Walker, pp. 1-16, 21-27, 31-51, 578-584

Study Questions

    • Why was the Constitution of the United States drafted and ratified?
    • What role do separation of powers and balance of powers play in the Constitution?
    • What were the arguments against the inclusion of the Bill of Rights in the Constitution?
    • Why does the Constitution require interpretation?
    • What are the various ways cases can come to the Supreme Court?
    • What are the different approaches to the interpretation of the Constitution?  What are the advantages and disadvantages of these approaches?
    • What factors do Supreme Court Justices consider in the adjudication of cases?  What factors should they consider?
    • What approaches to Constitutional interpretation were used in Gregg v. Georgia? How were they used?

Judicial Review

Reading: Epstein and Walker, pp. 691-702, and McCloskey, ch. 1

Case—Gregg v. Georgia

Representing Mr. Gregg_______VV_____________________________

Representing the state of Georgia__FA____________________________

Study Questions

    • What powers are given to the Supreme Court by the Constitution?
    • What are the provisions of the Judiciary Act of 1789?
    • What are natural law and positive law? How are they embodied in the Constitution?
    • What factors do Supreme Court Justices consider in the adjudication of cases?  What factors should they consider?
    • What approaches to Constitutional interpretation were used in Gregg v. Georgia? How were they used?

February 22

Judicial Review (cont’d)

Epstein and Walker, pp. 59-76

Podcast: Kittens Kick the Giggly Blue Robot All Summer

Case—Marbury v. Madison

Representing Mr. Marbury_____VP______________

Representing Mr. Madison______NC_____________

Study Questions

    • What is judicial independence? Why did the Founders insist on it?
    • What is judicial independence? Why did the Founders insist on it?
    • What is jurisdiction?  When does the Supreme Court have jurisdiction?
    • What is a writ of mandamus? What role did this power play in Marbury v. Madison?
    • What questions were at stake in Marbury v. Madison?
    • What was resolved in Marbury v. Madison and what was left unresolved?

Judicial Review (cont’d)

Reading:  McCloskey, ch. 2, Breyer, Active Liberty, pp. 3-34

Study Questions

    • On McCloskey
      • What are McCloskey’s criticism of formalism?
      • What are the constraints on judicial power?
      • How did Fletcher v. Peck affect the power of the Supreme Court?
    • On Breyer
      • What is “ancient liberty”? Why does Breyer want to “call increased attention” to it?
      • What are the dangers of the “willful” and the “wooden”? (p. 19)
      • According to Breyer, what should a judge consider in making a decision?

March 1

Judicial Review (cont’d)

Reading: Breyer, 37-101, 115-135

Study Questions

    • What are the democratic and non-democratic elements of the Constitution?
    • Are campaign finance laws constitutional? On what grounds?
    • What are the democratic and non-democratic elements of the Constitution?
    • Are campaign finance laws constitutional? On what grounds?
    • How does the principle of active liberty help to resolved disputes over federalism?
    • Why do privacy cases pose such a challenge for judges?
    • Is affirmative action critical to democracy?
    • What is the “text-based” approach? What is wrong with it, in Breyer’s view?
    • What are the dangers associated with considering purpose and consequence in adjudication?

Constraints on Judicial Power

Reading: Epstein and Walker, pp. 76-84;  McCloskey, ch. 3; Case Description, Gill v. Whitford

Podcast: The Political Thicket

Study Questions

On Epstein and Walker

    • What constraints does Article III place on judicial power?
    • What are original and appellate jurisdiction?
    • What was at stake in Ex parte McCardle?
    • What is justiciability? Give an example.
    • What is the political questions doctrine? Can a clear line be drawn between “political” and “legal” questions? See Baker v. Carr (1962) and Gill v. Whitford (pending)
    • What is standing? Who has it?

On McCloskey

    • How was the Court able to become the final arbiter of Constitutionality?
    • What was at stake in Martin v. Hunter’s Lessee?
    • What was at stake in McCulloch v. Maryland?

March 8:

The Legislature

Reading: Epstein and Walker, pp. 87-101

    • Is it the American people or the states that empower the Constitution?
    • Is Congressional power limited to that which is explicitly stated in the Constitution?
    • Can Congress add qualifications to serve in Congress beyond those specified in Article I?  Answer with reference to Powell v. McCormack and/or U.S. Term Limits v. Thornton.

The Legislature (cont’d)

Reading: Epstein and Walker, pp. 101-125

    • What is the “implied powers” doctrine?
    • Why did Justice Marshall believe McCulloch v. Maryland was his most important decision?  Why was Thomas Jefferson opposed to the decision?
    • What is the purpose of the power to investigate?  What are the limits on Congress’s power to investigate?  Answer with reference to Barenblatt v. U.S.
    • What is Justice Black’s argument in his dissent to Barenblatt?
    • Why would Congress ever want to delegate powers given to it by the Constitution?  Under what circumstances is the delegation of power permitted?
    • What is the legislative veto?  Is it constitutional?  Answer with reference to INS v. Chadha

March 15

The Executive

Reading: Epstein and Walker, pp. 127-138, 138-152

Case—Clinton v. Jones

Representing Mr. Clinton______JO____________________________

Representing Ms. Jones______SM_________________________

    • What are the “mere designation of office” theory and the “general grant of power” theory?  What implications does each one have for executive power?
    • Are there any circumstances under which the President may refuse to enforce a law?  Answer with reference to Train v. City of New York.
    • What is the line-item veto?  Is it constitutional?  Answer with reference to Clinton v. City of New York.
    • What are executive privilege and executive immunity?  What are the limitations on each one? Answer with reference to Mississippi v. Johnson, Nixon v. Fitzgerald, and/or Clinton v. Jones.

The Executive (cont’d)

Reading: Epstein and Walker, pp. 153-165, 169-176

Case—Hamdi v. Rumsfeld

Representing Mr. Hamdi____VP______________________________

Representing Mr. Rumsfeld____NC_______________________________

    • Does the President require Congressional approval to send soldiers to war?  Answer with reference to the War Powers Act?
    • What is habeas corpus? On what grounds may it be delayed, denied, or deferred?
    • What are enemy combatants? How, if at all, do their rights differ from those of American citizens?
    • Do the powers of the President expand in an emergency?  Answer with reference to Ex Parte Milligan, Ex Parte Quirin, Korematsu v. U.S., and/or, Hamdi v. Rumsfeld

March 19-23: Spring Break

March 29

Federalism

Reading: Epstein and Walker, pp. 181-201, McCloskey, ch. 4

Case—Hammer v. Dagenhart

Representing the agribusinesses_______SD________________________

Representing the United States______DG________________________

On Epstein and Walker

    • Is the Constitution a contract among the people of the United States or among the states? What are the arguments on either side?
    • What was the purpose of the 10th Amendment?
    • What are exclusive and concurrent powers?
    • What are the theories of dual federalism and cooperative federalism?
    • Summarize Justice Taney’s opinion in Dred Scott v. Sandford?
    • How did the Court interpret the commerce clause in Hammer v. Dagenhart?

On McCloskey

    • Under Taney (prior to Dred Scott) how did the “position of the Court become even more secure?”
    • Why did Dred Scott disempower the Supreme Court as a political institution?

MIDTERM

April 5: 

Commerce Power

Reading: Epstein and Walker, pp. 211-17, 220-242

Podcast: One Nation, Under Money

Case—United States v. Lopez

Representing the United States____CT_________________________

Representing Mr. Lopez_______DG___________________________

    • What is commerce?  Answer with reference to Gibbons v. Ogden.
    • When does commerce become interstate, according to Justice Marshall?
    • What is the doctrine of “direct effects?”  How does it compare with the “stream of commerce” doctrine?
    • What was the “switch in time that saved nine?”  How did it affect the Court’s interpretation of the commerce clause?
    • How did the Court limit Congress’s power to regulate commerce in U.S. v. Lopez and U.S. v. Morrison?

Commerce Power (cont’d)

Reading: Epstein and Walker, pp. 247-251, National Federation of Independent Business v. Kathleen Sebelius (Blackboard)

    • Why did lawmakers turn to the commerce clause to legislate civil liberties? Why didn’t they rely on the 14th Amendment?
    • What was Congress’s legal rationale for the constitutionality of the Civil Rights Act? Answer with reference to Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung.
    • What was the basis of the Supreme Court’s decision in National Federation of Independent Business v. Sebelius?

April 12:

The Contract Clause

Reading: Epstein and Walker, pp. 277-96

Case—Home Building and Loan Association v. Blaisdell

Representing the home builders___AN_____________________

Representing Mr. Blaisdell________RF_____________________

    • Why were contracts so often broken around the time of the Founding?
    • What was the basis of Marshall’s decision in Fletcher v. Peck?
    • How did the Taney Court modify the Marshall Court’s doctrine on the contract clause?
    • What did the Court weigh against the plaintiffs’ contract clause arguments in Charles River Bridge and Stone v. Mississippi?
    • How did interpretation of the contract clause change during the Great Depression?
    • Does the meaning of the Constitution change during times of emergency?  Answer with reference to Home Building and Loan Association v. Blaisdell?

Substantive Due Process

Reading:  Epstein and Walker, pp. 300-17

Case—Lochner v. New York

Representing Mr. Lochner_______MC________________________

Representing the state of New York_______SD___________________

      • What is the difference between procedural and substantive due process?
      • Why is substantive due process a largely discredited doctrine?
      • What is social Darwinism?  How did it impact Constitutional jurisprudence?
      • What was the basis of the  Court’s decision in Lochner v. New York?
      • Is the Muller decision consistent with Lochner or are the two decisions incompatible?  Why?
      • What was the basis of the Court’s decision in Adkins v. Children’s Hospital?
      • What was the basis of the Court’s decision in West Coast Hotel v. Parrish?
      • What is the “rational basis test?”

April 19

Substantive Due Process (cont’d)

Reading: McCloskey, chs. 5-6

      • Same questions as above.

Religion (Free Exercise)

Reading:  Epstein and Walker, pp. 347-64, McCloskey ch. 7, Burwell v. Hobby Lobby (2014)

Case—Oregon v. Smith

Representing the state of Oregon___CC____________________________

Representing Mr. Smith______AN_______________________________

On Epstein and Walker

      • How does the standard of a “valid secular policy” limit freedom of religion?
      • How does the distinction between belief and action limit freedom of religion?
      • On what grounds has the Court held that public school students can be compelled to recite the pledge of allegiance?
      • What is the Sherbert-Yoder Compelling Interest Test? Is it more or less restrictive of religious liberty than the “valid secular policy” standard?
      • What was the basis of the Court’s decision in Oregon v. Smith? 
      • What was the basis of the Court’s decision in Burwell v. Hobby Lobby? How did the Court’s rationale in this decision differ from its rationale in Oregon v. Smith?

On McCloskey

      • After 1937, where did the Court define a role for itself?
      • Was the Court’s approach to freedom of expression consistent with Justice Stone’s famous footnote in Carolene Products?
      • How did the Court intervene on issues of racial discrimination during this period?

April 26:

Religion (Establishment)

Reading: Epstein and Walker, pp. 364-369, 382-395

Case—School District of Abington Township v. Schempp

Representing the School District____JL__________________________________

Representing Mr. Schempp______JA______________________________

      • How might the establishment clause come into conflict with the free exercise clause?
      • What was the basis of the Court’s decision in Everson v. Board of Education?
      • What is the Lemon Test?
      • Under what circumstances, if any, is prayer in public schools constitutional?
      • In avoiding the establishment of religion, has the Court infringed on free exercise?
      • What was the basis of the Court’s decision in Abbington v. Schempp?
      • What was the basis of Justice Brennan’s dissent in Lynch, Mayor of Pawtucket v. Donnelly?
      • When, if ever, are religious displays permitted in public places?

The Right to Privacy: Abortion

Reading: Epstein and Walker, pp. 489-513

Case—Roe v. Wade

Representing Ms. Roe________NG___________________________

Representing Dallas County______JL__________________________

      • What was the basis of the Court’s decision in Griswold v. Connecticut? What was the basis of Justice Black’s dissent?
      • Where, if anywhere, does the Constitution protect a right of privacy?
      • What was the basis of the Court’s decision in Roe v. Wade? What values did the Court balance? How did it balance those values?
      • How has the right to abortion been limited since Roe?

May 3:

Gay Rights

Reading:  Epstein and Walker, pp. 513-527; McCloskey, Epilogue, Perry et al v. Schwarzenegger (https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf), pp. 1-10, pp. 60-136; Masterpiece Cakeshop v. Colorado (2017)

Case—Perry et al v. Schwarzenegger

Representing Mr. Perry______________________________________

Representing the state of California___RF_________________________________

      • What was the basis of the Court’s decision in Bowers v. Hardwick?
      • What was the basis of Justice Kennedy’s majority opinion in Lawrence v. Texas? How did Justice O’Connor’s concurring opinion differ? What was the basis of Justice Scalia’s dissent? Of Justice Thomas’ dissent?
      • What was the basis of Judge Walker’s opinion in Perry et al v. Schwarzenegger?
      • What constitutional values are being balanced in Masterpiece Cakeshop v. Colorado Civil Rights Division?

Rights of the Accused

Reading: Epstein and Walker, pp. 565-572, 575-578, McCloskey, ch. 8

Podcast: Cruel and Unusual

Case—Gideon v. Wainwright

Representing Mr. Gideon______SM__________________________

Representing Mr. Wainwright_______JA__________________________

On Epstein and Walker

    • Historically, what has the right to counsel guaranteed? How did Gideon v. Wainwright change this?
    • What did the Framers intend to ban through the 8th Amendment’s ban on cruel and unusual punishment?
    • Does the death penalty constitute cruel and unusual punishment?  What are the arguments for and against this claim?

On Mcloskey (Levinson)

    • How do you think McCloskey would have evaluated the Warren Court?
    • What is incorporation?
    • Why did Oliver Wendell Holmes called equal protection is “the usual last resort of constitutional arguments?”

May 10:

Civil Rights (Discrimination)

Reading: Epstein and Walker, pp. 595-614, 622-632, Shelby County v. Holder (Blackboard)

Case—Brown v. Board of Education

Representing the students_________NG________________________

Representing the Topeka Board of Education____FA______________________

      • What are civil rights? How are they different from civil liberties?
      • Whatdoes the equal protection clause mandate?  What is required to make an equal protection claim?
      • What is discrimination?  When is discrimination justified?
      • What are the rational basis test, strict scrutiny, and compelling state interest?  How do these standards differ in the way they constrain state action?
      • What was the basis of the Court’s decision in Plessy v. Ferguson?
      • What was the basis of the Court’s decision in Brown v. Board of Education?
      • In Brown, the NAACP contended that schools could not be “separate but equal,” that separate schools are inherently unequal.  Do you agree?
      • Should the Court use sociological evidence?
      • What was the basis of the Court’s decision in Shelby County v. Holder?
      • Does the Constitution prohibit discrimination on the basis of income?  Discuss with reference to San Antonio Independent School District v. Rodriguez.
      • Does the Constitution prohibit discrimination on the basis of sexual orientation? Discuss with reference to Romer v. Evans.

Civil Rights (Affirmative Action)

Reading:  Epstein and Walker, pp. 633-647, McCloskey, ch. 9

Case—Grutter v. Bollinger

Representing Ms. Grutter ___________JS____________________________

Representing the University of Michigan ______CC____________________________

Study Questions

On Epstein and Walker

      • Must justice be color blind, as Justice Harlan argued in his dissent to Plessy?
      • What is affirmative action?
      • Was Alan Bakke a victim of racial discrimination?
      • Do affirmative action programs meet the standard of strict scrutiny?
      • Under what conditions is affirmative action constitutional?  Answer with reference to UC Regents v. Bakke and Grutter v. Bollinger?

May 17:

Right to Bear Arms

Reading:  District of Columbia v. Heller (Blackboard)

Podcast: The Right to Bear Arms

On District of Columbia v. Heller

      • What is the preamble of the Second Amendment?  To what extent does it constrain the rest?
      • Does the Constitution guarantee a collective right to a militia or an individual right to bear arms? Answer with respect to District of Columbia v. Heller?
      • In the aftermath of Heller, how much may the state constitutionally regulate the possession of firearms?

Election Campaign Regulation

Reading:  Epstein and Walker, pp. 659-666, Citizens United v. Federal Election Commission (Blackboard)

Podcast: Citizens United

Case—Citizens United v. Federal Election Commission

Representing Citizens United____VV____________________________

Representing the Federal Election Commission___JO_________________

      • What standard of protection do campaign contributions warrant?
      • What was the basis of the Court’s decision in Buckley v. Valeo?
      • What was the basis of the Court’s decision in McConnell v. Federal Election Commission?
      • What was the basis of the Court’s decision in Citizen’s United v. FEC?

May 24: Recent Cases Argued before the Supreme Court

Reading: Janus v. AFSCME: Amy Howe (SCOTUSblog) and Cornell Legal Information Institute; Gill v. Whitford: Amy Howe (SCOTUSblog) and Cornell Legal Information Institute; Trump v. Hawaii: Amy Howe (SCOTUSblog) and Cornell Legal Information Institute. All readings are on Blackboard.

On Janus v. AFSCME

      • What is an agency fee? On what grounds does Janus argue they are unconstitutional? How does AFSCME respond?
      • What is the free-rider problem?
      • How might a ruling for Janus affect private sector unions?

On Gill v. Whitford

      • What is partisan redistricting?
      • Is partisan redistricting justiciable?
      • On what grounds does Whitford argue that partisan gerrymandering is unconstitutional? How does Gill respond?
      • How might a ruling for Janus affect private sector unions?

On Trump v. Hawaii

      • What is being balanced in this case?
      • Does the travel ban include an invidious form of discrimination?
      • Is the ban narrowly tailored to achieve its goal?

FINAL EXAM: May 31, 3:40-6:40

Style Guide:

The Department of History and Political Science mandates that all submitted work adhere to the Turabian/Chicago style delineated in Kate Turabian, et. al., A Manual for Writers of Term Papers, Theses, and Dissertations, University of Chicago Press (available at the Wilson Library Reference Desk).

Here is a website that will automatically format citations in Chicago style for you: http://www.citethisforme.com/.

Exam Proctoring Guidelines:

  1. One seat space between students when possible.
  2. No bathroom breaks except in the case of illness or emergency.  Student should discuss this circumstance with the proctor prior to the start of the exam.
  3. No materials on the desk except for pens/pencils, bluebook or writing paper and exam.
  4. Under no circumstances can students access electronic devices during the exam.
  5. Exam proctors will note any violation of these rules and those will be considered in the final grade.

Grading:

Your work will be evaluated according to the following criteria:

A— designates work of extraordinarily high quality; reflects unusually thorough and comprehensive understanding of issues at hand; presents a clearly identifiable thesis and argument that demonstrates cogent and creative development and support of ideas.

B— designates work of high quality; reflects clearly organized and comprehensive understanding of issues and hand; presents substantive thesis and argument with evident development and support of ideas.

C— designates work which minimally meets requirements set forward in assignment; reflects some organization and development of ideas, but develops argument in superficial or simplistic manner; may only address part of the assignment or be otherwise incomplete.

D— designates work of poor quality which does not meet minimum requirements set forward in assignment; demonstrates poor organization of ideas and/or inattention to development of ideas, grammar, and spelling; treatment of material is superficial and/or simplistic; may indicate that student has not done reading assignments thoroughly.

F— designates work that does not meet ANY of the standards set above or which is not handed in.

Plagiarism

Plagiarism is a but highly unethical practice. Plagiarism will result in the immediate failure of this course and disciplinary action which could lead to expulsion from the University. If you are having problems in the course, please come and talk to me about it rather than doing something that could put your entire college career in jeopardy.

Plagiarism includes, but is not limited to the following:

  • The direct copying of any source, such as written and verbal material, computer files, audio disks, video programs or musical scores, whether published or unpublished, in whole or part, without proper acknowledgment that it is someone else’s.
  • Copying of any source in whole or part with only minor changes in wording or syntax, even with acknowledgment.
  • Submitting as one’s own work a report, examination paper, computer file, lab report or other assignment that has been prepared by someone else. This includes research papers purchased from any other person or agency.
  • The paraphrasing of another’s work or ideas without proper acknowledgment.

In this course, we will study the Supreme Court and constitutional law from a variety of perspectives.  We will study the court in its historical and political context, as one actor among many.  We will study the court as a unique institution, exploring its internal workings and the style of reasoning it applies.  We will also take a philosophical approach and explore the meanings and implications of the court’s jurisprudence on fundamental rights and liberties.

There are four objectives to this course. First, you should develop an understanding of the role of the judiciary in shaping our society and our system of government. Second, you should become familiar with the most important principles of constitutional law. Third, you should develop the ability to summarize court cases into concise legal briefs. Fourth, you should develop an ability to use precedents, logic and evidence to evaluate Supreme Court decisions.

Throughout the course, I would like you to think about this general question:  Does the law in America serve as a force for justice, democracy, and liberation or as a bulwark of privilege, oligarchy, and oppression?

Required Texts:

Select texts are available on Blackboard.

Texts IN HARD COPY must be brought to class on the day they will be discussed.  Students will be considered absent if they do not bring the reading to class on the day it is discussed.

General Information:

This course will emphasize critical reading and analysis of the assigned texts.  Class meetings will be discussion-oriented, revolving around the presentation and adjudication of cases by all members of the class.  Two to four students will present cases, while the rest of us question them and decide the case.  All of this means that readings must be completed before the class meeting in which they will be discussed.  When you are doing the readings, keep in mind that you will be expected to participate in the debates outlined in the readings, reject some positions, embrace others, and defend the choices you make. During class discussion you are not expected to have fully developed points of view about the course materials. But you are expected to participate. No one will be penalized for being wrong or imprecise, for expressing uncertainty or frustration, for changing their minds. But it should be clear that you are trying, that you have done the readings and are working toward a mastery of the material.

Questions: None of us, myself included, knows everything about the topics of this class. It is our responsibility to ask others who may know the answer, either in class, in office hours, or over dinner. I expect that you are learning the material, not that you know it. As much as possible, try not to be shy or embarrassed about what you don’t yet know. The biggest failure in learning any material, in college or in life, is to fail to ask questions about things you do not know.

Availability:  I expect that all of you, either alone or in groups, will contact me throughout the semester. I am almost always available to discuss the course material or other life issues.

Laptops and Cell PhonesLaptops may not be used in class.  Cell phones must be turned off AND put away during class meetings.  Students who use laptops or cell phones without explicit permission to do so will be considered absent.

Evaluation Criteria:

Grades will be based on the following:

  • Quizzes: 10%
  • Think Pieces: 10%
  • Two legal briefs: 10% each
  • Midterm: 20%
  • Final: 30%
  • In-class participation: 10%

Both exams and both legal briefs must be completed to pass this course.

Supersized Legal Briefs: Each student must prepare two legal briefs (for guidelines on how to write a brief, see pp. 760-761 of the casebook).  The briefs should be about 1500 words in length.

The cases we read are always abridged.  This means that, when you compose your legal briefs, you will generally need to go somewhat beyond the scope of the course materials.  See p. 766 of the casebook and our Blackboard site for internet resources.  You might also look at law school casebooks or secondary literature on the cases you are researching.

All legal briefs must be submitted to SafeAssign on Blackboard by 11:59 pm on the day the case is argued. Late papers will be penalized at the rate of one grade per day.

These briefs are “supersized” because, in addition to completing the standard elements of a legal brief, students must answer the following five questions.  You should devote approximately 500 words to the traditional brief and 1000 words to these questions:

  1. What are the relevant passages from the Constitution?
  2. Were separation of powers issues and/or federalism implicated in the case?  If so, how?
  3. What method(s) of legal interpretation were applied in the case?
  4. What were the relevant precedents and how were they interpreted?
  5. What was being balanced? (rights v. public welfare, rights v. other rights, etc.)

For each case you brief, you will also make oral arguments in class. The other class members and I will sit as the court, hearing your arguments and asking questions.  For this assignment, students will sometimes work alone, sometimes in groups with two students arguing as a team on each side of the case.  You will be assessed both on your presentation skills and on the brief.  Attendance at the class sessions at which you will present is mandatory and cannot be rearranged or made-up if missed.

When cases are presented in class, each legal team will be given 5-8 minutes to present their principal arguments.  Following each presentation, there will be a 5-10 minute question and answer period where the court will pose questions.  After both initial presentations are complete, each side will be given 3-5 minutes for a rebuttal.  Following rebuttals, the court will deliberate and then decide the case.  Though you are required to write two briefs, you may be asked to make oral arguments for a third case.

Exams: Exams will be a combination of essay, short answer and multiple choice questions.

Attendance and Participation:  Attendance and punctuality are basic requirements for an effective discussion. Beyond that, each student’s frequency and quality of contribution to the class discussion will be assessed and reflected in the class participation score.  Students who miss more than four classes will automatically suffer a deduction of one-third of a grade (e.g. a B+ becomes a B).  Students who miss more than seven classes will suffer a full grade deduction (e.g. a B+ becomes a C+).  Students who are in class but do not have the assigned reading IN HARD COPY will be considered absent.

Schedule of Meetings and Required Readings:

Aug. 28

NO CLASS

Sept. 4

3:30-5:00: Introduction

5:10-6:40: Judicial Interpretation

Reading: Epstein and Walker, pp. 1-14, 20-26, 30-47, 607-614

Case—Gregg v. Georgia

Representing Mr. Gregg__________________________________________

Representing the state of Georgia_____________________________________

Sept. 11

5:10-6:40: Judicial Review

Reading: Epstein and Walker, pp. 729-742, and McCloskey, ch. 1

3:30-5:00: Judicial Review (cont’d)

Epstein and Walker, pp. 53-71

Case—Marbury v. Madison

Representing Mr. Marbury_____________________________________

Representing Mr. Madison____________________________________

Sept. 18

3:30-5:00: Judicial Review (cont’d)

Reading:  McCloskey, ch. 2, Breyer, Active Liberty, pp. 3-34

5:10-6:40: Judicial Review (cont’d)

Reading: Breyer, 37-101, 115-135

Sept. 25

3:30-5:00: Constraints on Judicial Power

Reading: Epstein and Walker, pp. 71-81,  McCloskey, ch. 3, Baker v. Tennessee handout

Case—Baker v. Tennessee

Representing Mr. Baker________________________________________

Representing the state of Tennessee_______________________________

5:10-6:40: The Legislature

Reading: Epstein and Walker, pp. 83-98

Case—U.S. Term Limits v. Thornton

Representing the United States_____________________________________

Representing Mr. Thornton________________________________________

Oct. 2

3:30-5:00: The Legislature (cont’d)

Reading: Epstein and Walker, pp. 98-122

INS v. Chadha

Representing the INS______________________________________________

Representing Mr. Chadha____________________________________________

5:10-6:40: The Executive

Reading: Epstein and Walker, pp. 123-134, 138-148

Case—Clinton v. Jones

Representing Mr. Clinton___________________________________________

Representing Ms. Jones____________________________________________

Oct. 9

3:30-5:00: The Executive (cont’d)

Reading: Epstein and Walker, pp. 148-161, 164-173

Case—Hamdi v. Rumsfeld

Representing Mr. Hamdi_____________________________________________

Representing Mr. Rumsfeld___________________________________________

5:10-6:40: Federalism

Reading: Epstein and Walker, pp. 177-198, McCloskey, ch. 4

Case—Hammer v. Dagenhart

Representing the agribusinesses___________________________________

Representing the United States____________________________________

Oct. 16

3:30-5:00: Federalism (cont’d)

Reading: Epstein and Walker, pp. 209-15, 219-242

Case—United States v. Lopez

Representing the United States____________________________________

Representing Mr. Lopez__________________________________________

5:10-6:40: MIDTERM

Oct. 23

3:30-5:00: Commerce Power

Reading: Epstein and Walker, pp. 247-251, National Federation of Independent Business v. Kathleen Sebelius (Blackboard)

5:10-6:40: The Contract Clause

Reading: Epstein and Walker, pp. 279-99

Case—Home Building and Loan Association v. Blaisdell

Representing U.S. Term Limits Inc.________________________________

Representing Mr. Thornton_______________________________________

Oct. 30

3:30-5:00: Substantive Due Process

Reading:  Epstein and Walker, pp. 300-23

Case—Lochner v. New York

Representing Mr. Lochner________________________________________

Representing the state of New York_________________________________

5:10-6:40: Substantive Due Process (cont’d)

Reading: McCloskey, chs. 5-6

Nov. 6

3:30-5:00: Religion (Free Exercise)

Reading:  Epstein and Walker, pp. 347-71, McCloskey ch. 7

Case—Oregon v. Smith

Representing the state of Oregon____________________________________

Representing Mr. Smith___________________________________________

5:10-6:40: Religion (Establishment)

Reading:  Epstein and Walker, pp. 371-76, 392-409

Case—School District of Abington Township v. Schempp

Representing the School District______________________________________

Representing Mr. Schempp__________________________________________

Nov. 13

3:30-5:00: The Right to Privacy: Abortion

Reading: Epstein and Walker, pp. 511-538

Case—Roe v. Wade

Representing Ms. Roe_________________________________________

Representing Dallas County______________________________________

5:10-6:40: Gay Rights

Reading:  Epstein and Walker, pp. 538-554, McCloskey, Epilogue, District of Columbia v. Heller (Blackboard)

Case—Lawrence v. Texas

Representing Mr. Lawrence______________________________________

Representing the state of Texas____________________________________

Perry et al v. Schwarzenegger  (https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf), pp. 1-10, pp. 60-136

Case—Perry et al v. Schwarzenegger

Representing Ms. Perry____________________________________________

Representing the State of California___________________________________

Nov. 20

3:30-5:00:  Rights of the Accused

Reading: Epstein and Walker, pp. 594-601, 604-614, McCloskey, ch. 8

Case—Gideon v. Wainwright

Representing Mr. Gideon____________________________________________

Representing Mr. Wainwright________________________________________

5:10-6:40: Civil Rights (Discrimination)

Reading: Epstein and Walker, pp. 625-647, 656-668, Shelby County v. Holder (Blackboard)

Case—Brown v. Board of Education

Representing the students___________________________________________

Representing the Topeka Board of Education_____________________________

Nov. 27: THANKSGIVING

Dec. 4

3:30-5:00: Civil Rights (Affirmative Action)

Reading:  Epstein and Walker, pp. 668-685, McCloskey, ch. 9

Case—Grutter v. Bollinger

Representing Ms. Grutter__________________________________________

Representing the University of Michigan________________________________

5:10-6:40: Election Campaign Regulation

Reading:  Epstein and Walker, pp. 693-702, Citizens United v. Federal Election Commision (http://www.law.cornell.edu/supct/html/08-205.ZS.html)

Case—Citizens United v. Federal Election Commission

Representing Citizens United________________________________________

Representing the Federal Election Commission__________________________

FINAL EXAM:

Exam Proctoring Guidelines:

  1. One seat space between students when possible.
  2. No bathroom breaks except in the case of illness or emergency.  Student should discuss this circumstance with the proctor prior to the start of the exam.
  3. No materials on the desk except for pens/pencils, bluebook or writing paper and exam.
  4. Under no circumstances can students access electronic devices during the exam.
  5. Exam proctors will note any violation of these rules and those will be considered in the final grade.

Grading:

Your work will be evaluated according to the following criteria:

A— designates work of extraordinarily high quality; reflects unusually thorough and comprehensive understanding of issues at hand; presents a clearly identifiable thesis and argument that demonstrates cogent and creative development and support of ideas.

B— designates work of high quality; reflects clearly organized and comprehensive understanding of issues and hand; presents substantive thesis and argument with evident development and support of ideas.

C— designates work which minimally meets requirements set forward in assignment; reflects some organization and development of ideas, but develops argument in superficial or simplistic manner; may only address part of the assignment or be otherwise incomplete.

D— designates work of poor quality which does not meet minimum requirements set forward in assignment; demonstrates poor organization of ideas and/or inattention to          development of ideas, grammar, and spelling; treatment of material is superficial and/or simplistic; may indicate that student has not done reading assignments thoroughly.

F— designates work that does not meet ANY of the standards set above or which is not handed in.

Plagiarism

A prevalent but highly unethical practice is plagiarism. Plagiarism will result in the immediate failure of this course and disciplinary action which could lead to expulsion from the University. If you are having problems in the course please come and talk to me about it rather than doing something that could put your entire college career in jeopardy.

Plagiarism includes, but is not limited to the following:

  • The direct copying of any source, such as written and verbal material, computer files, audio disks, video programs or musical scores, whether published or unpublished, in whole or part, without proper acknowledgment that it is someone else’s.
  • Copying of any source in whole or part with only minor changes in wording or syntax, even with acknowledgment.
  • Submitting as one’s own work a report, examination paper, computer file, lab report or other assignment that has been prepared by someone else. This includes research papers purchased from any other person or agency.
  • The paraphrasing of another’s work or ideas without proper acknowledgment.

 

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