POSC 405-10 - American Constitutional Law
Fall 2007
Prof.
Goldstein
Office Hours: 10-11 M/W/F and by appt.
Office: 458
Smith Phone:
831-1931
email: LESL@UDEL.EDU Webpage: http://www.udel.edu/poscir/faculty/LGoldstein/webpage.html
COURSE SUBJECT MATTER AND LINES OF INQUIRY
This course deals with those Supreme Court cases that, in interpreting the American Constitution, have shaped the law concerning the powers of our governmental institutions. Since our national Constitution is one of delegated (or enumerated) powers, any power that the President or other federal executive, or Congress, or a federal judge, exercises must have roots in that document. And since the national Constitution is (along with national laws and national treaties) the supreme law of the land, any strictures that it (they) place(s) on state governmental power must be observed by the state. Those exercises of governmental power that evoked controversy concerning their authoritative base in the Constitution --enough controversy that the dispute reached the Supreme Court--are the subject matter of this course. Rather than attempt a comprehensive overview of every power of every branch of government, I have tried to identify major lines of controversy, or major themes. These themes are arranged somewhat historically, so as to give you a sense of constitutional law as it has developed over time. The topical outline below identifies the major themes to be covered.
In studying this material, you should keep various considerations in mind. First, the Court is a policy-maker. Does the public policy created by the decision constitute good public policy? Are the rules of the policy clear, so that citizens and political subordinates of the Court (state legislatures, local police) know what is expected of them? Is the new policy likely to promote a more just society? Is it consistent with fundamental principles of the American political system? Does it aid in the solution of some societal problem, does it make matters worse, does it ignore pressing problems? Does the policy take into account the Court's role in American society?
Your inquiry cannot stop there, however, because the Court is not simply a policy-maker--it is a court of law. We obey its decisions, even though we have not elected the Court and even though we cannot "vote the bums out." We obey its decisions because they are explanations of the law (law that has already been adopted by elected legislatures in the form of either the Constitution or national statutes). Thus, one also must ask the question of a Court decision, "Is it 'good law'?" I use the phrase "good law" not in the usual sense of "valid law" (un-overruled) but in reference to the quality of the legal argument presented in the decision. Is the opinion logically persuasive? Does it convince you that its interpretation of the Constitutional clause, of the statute, or of the precedent is a plausible one? Is the best one? Does the majority opinion convince you that the decision was not just a matter of a yes or no vote by 5 judges but that it really does express the law? Naturally, earlier precedents on the same legal question may have been mistaken, but if many courts on many occasions have believed that a particular law meant a certain thing, the weight of their authority has some bearing on the argument. If a court reversed its position every year on a particular question, would citizen respect for the resulting "law" be very high?
In addition to the persuasiveness of the legal argument, the clarity of the argument must be considered. Is it clear just how far the decision goes? A case dealing with a 19-year-old black female may yield a rule covering only black female minors, or all minors, or all females, or all blacks, or all racial minority members, or all citizens. Is the rule a clear one? At this point policy and legal considerations may merge: possible implications of the opinion may be poor public policy but alternative implications may produce good public policy--is it clear just which implications the Court intends? (For, if not, the decision may produce bad policy in the long run despite its short term good results.)
You should read carefully the assigned cases BEFORE the class in which they are discussed. In order to make sure you have understood the basics of the case, and as a useful record to have in your notes at exam time, you should prepare a "brief" of each case. These briefs will not be collected; they are for YOUR use. A brief should contain the following information (in a short statement in your own words):
1) Facts of the case: Who is the appellant/plaintiff? Who is the appellee/respondent? What situation produced the case? What legal action has been taken so far?
2) Issue: Should be stated as a yes/no question. Should include a reference to the constitutional clause that is involved, e.g., is it a violation of the Fourteenth Amendment due process clause to hold a person incommunicado and question him/her for 20 hours without access to a lawyer?"
3) Holding: Either a "yes" or a "no". (Answer to the "issue"). If there are several issues, there must be several holdings.
4) Reasoning: As you should see from the above discussion, the reasoning is the most important part of the case, for purposes of this course. As political scientists we look to the reasoning because it explains more fully than the immediate holding does, what policy is being established by the case. Also, the quality of the reasoning is a test of whether the Court is functioning well as a legal institution, which is, after all, its role in the political system. Furthermore, lawyers (for those of you contemplating the profession) must be able to engage in legal reasoning, so as to convince judges to adopt the policy they're advocating. Analysis and evaluation of the Court's reasoning, hopefully, will help you to develop your own skills of legal reasoning.
When possible, try to write your summary of the reasoning as a syllogism. (Do NOT waste time copying whole paragraphs of the opinion). A syllogism contains three parts, and they are illustrated in the following example.
Major premise:
Due process of law, as called for in the 14th Amendment, requires the minimal standards of fairness and justice basic to the Anglo-American legal tradition.
(The major premise states some general rule; it can be a rule of law from earlier cases, a rule of interpretation, or even some basic principle that seems "self-evident" to the judge).
Minor premise:
To question a woman for 20 hours without access to her lawyer violates concepts of fundamental fairness basic to our legal tradition. (Minor premise links facts of the case to the predicate in the major premise).
Conclusion:
Therefore, to question a woman for 20 hours without access to her lawyer violates the due process of law called for in the 14th Amendment. (Conclusion links facts of the case to the subject in the major premise).
The reasoning for one decision might, of course, contain several syllogisms; often one or two different arguments (syllogisms) are needed to reach (or support) the conclusion that forms the major premise of the main syllogism. Don't be discouraged by all this technical talk of premises, etc.--you will NOT be asked on exams to identify a "major premise." This is simply a way to train your thinking so that you can focus on the basic reasoning in the case.
5) Rule(s) of law: What rule(s) is this case establishing for the governance of future cases? In noting rules of law, you should be watching for ways that legal doctrines develop. The Court, like our other political institutions, makes policy changes in an incremental pattern. Major premises as well as holdings can be rules of law.
COURSE EXPECTATIONS
1. Have cases read and briefed BEFORE coming to class on date listed. Be prepared to brief cases orally during class discussion.
2. In addition to briefing the cases, you should be on the lookout for basic legal concepts that may crop up repeatedly in the Court's reasoning. You will be expected to be able to define these concepts and explain their development from case to case. Some of these concepts (although this is not an all-inclusive list) are itemized below:
judicial review
judicial supremacy
dormant (exclusive) power theory
concurrent power theory
dual federalism
substantive due process
executive privilege
3. Attendance is expected. ON THE DAY OF OUR MOOT COURT IT IS STRICTLY REQUIRED (unjustified absence on that day will be penalized). If you arrive late on that day, there should be a really good reason, and you need to let me know of your presence when you arrive (rather than entering quietly and unobtrusively, as you might otherwise believe is appropriate).
4. Academic honesty is fully expected in this course and in every other course on campus. Ignorance of the rules of academic honesty is no excuse. You are grown-ups now. If you are uncertain about whether/how to document a particular source, feel free to ask me or the staff at Morris Library or the staff at the Writing Center..
5. Finally, do not be discouraged at first by the difficulty of reading Court opinions. It really does get easier within a week or two, as you get used to the language.
Course Requirements: four essay exams, each of which counts 15% of the grade (total: 60% of grade), term paper and class participation. Class discussion counts 10% of the grade, and term paper assignment counts 30%. TERM PAPER ASSIGNMENT will be explained in class.
TOPICAL OUTLINE
I. The Judiciary
A. Modern Judicial Power in Action
B. Establishing Judicial Authority
C. Early challenges from the states
D. Political Questions and Fundamental Rights
E. Political Questions and TDCC's
II. Clarifying the State-Federal Divide
A. Explicit check:
contracts clause
B. Implicit:
1. Checks on state taxing power
2. Checks on state commerce power
III. Presidential Powers and Privileges
A. The War Power
B. The War on Terror
C. Executive Privilege
D. Prosecutorial Control?
E. Presidential
Immunity (from Nixon to Paula Jones)
IV. Legislative Power after the Civil War
A. The
Congressional Commerce Power -- Coping with an Industrial Economy
1. Dual Federalism (shackle #1)
2. Economic Substantive Due Process (shackle #2)
3. Court
Comes to Terms with the Modern Industrial Economy
4. How Much is Commerce?
B. Judging /Legislating for/against Civil Rights/Civil Liberties
C. Court Cuts Back National Power?
V. How the United States of America Became an Empire
Books for Purchase:
Constitutional Law Vol. I (7th ed.) by Rossum and Tarr (pages in this listed as RT below)
The Insular Cases by B. H. Sparrow
Also, you will need to print out certain case excerpts electronically so you
can bring them to class. Assignment list contains links to these which
are marked with an E. They can be accessed from my electronic
syllabus for POSC 405 -- 07(where they appear in blue) available on my webpage,
http://www.udel.edu/poscir/faculty/LGoldstein/webpage.html
DAILY ASSIGNMENTS—to be read before, and in preparation for, class on the date listed.
For cases listed below as E go to my website, and there go to the syllabus for this course. Then just click on the name of the case you need. You will then see an excerpted version of it. You will then be able to print out your own copy of the case. (If you are curious to see the whole case, or any other, just go to www.findlaw.com). ALWAYS BRING TO CLASS COPIES OF THE CASES WE ARE DISCUSSING. Where a case title is followed by the word “clip” no “brief” is expected.
Wed.Aug 29 – Introduction to Course
FRIDAY Aug. 31 CLASS CANCELLED
Mon. Sep. 3 Labor Day, no Class.
Wed. Sep 5
I. The
Judiciary
A. Modern Judicial Power in Action
McGowan v. Maryland & Braunfeld v. Braun (1961) (attached to end of syllabus)
Sherbert v. Verner (1963) (attached to end of syllabus)
Fri. Sep.7 –
Employment Div v. Smith (1990)—E http://web.utk.edu/~scheb/Smith.htm
Mon Sep.10
City of
Cutter
v. Wilkinson (2005)
--E
W.Sep.12
B. The Establishment of Judicial Authority
Marbury v. Madison(1803) RT 56-60 and
83-86
Constitution RT 579-591 (Keep an eye out for sources of the judicial review
power)
Also skim, pp.RT 47-51 for general
background. Bring to class in writing one honest question about the
Constitution. "Honest" means it should be a question you sincerely
wonder about after you have read the Constitution.
F. Sep.14 Marbury (cont'd)
Calder v. Bull clip (1798) RT 86-88
Eakin v. Raub clip (1825) RT 88-90
M. Sept 17
C.
Early Challenges from the States and Congress
Cohens v. Virginia (1821) discussion RT
60-61, bot.289-290;case at RT 317-321
Ex Parte McCardle (1869)
RT 62-4, 99-100
W. Sep. 19
D. Political Questions and Fundamental Rights RT 64-71
Baker v. Carr (1962) RT 109-114
Bush v. Gore (2000) discussion
F.. Sep.21
E. Political Questions and TDCC’s
Powell v. McCormack (1969) RT 128, 146-149
M. Sep.24 EXAM # 1
W. Sep26
II. Establishing Checks on State Power:
A. Explicit: Contracts Clause RT 484-492
Fletcher v. Peck (1810) RT 496-498
Dartmouth College v. Woodward (1819) RT
498-501
B. Implicit (supremacy clause)
1. Checks on state taxing
power: McCulloch v.
M. Oct.1
2. Checks on and
space for state commerce power:
Gibbons v.
Willson v. Blackbird Creek Marsh Co.(1829)
E
W. Oct.3
III. Presidential Powers and Privilege
A. The War Power RT 216-225
Ex Parte Milligan (1866) RT 240-243
Korematsu v.
B. The "War" on Terror RT 225-230
Ex Parte Quirin (1942) RT 246-251
Documents RT
251-257
Mon. Oct. 8
Rasul v. Bush (2004) RT 267-272
Hamdi v. Rumsfeld (2004) RT 257-267
Documents RT 272-280
W. Oct . 10
C. Executive Privilege RT 185-187
U.S. v. Nixon (1974) RT 205-207
D. Prosecutorial Control?
Morrison v. Olson RT 201-205
F. Oct. 12
E. Presidential Immunity
Clinton v. Jones (1997) RT 207-210, 164-166
M. Oct 15
IV. Legislative Power after the Civil War
A. The Congressional Commerce Power -- Coping with an Industrial
Economy
1. Dual Federalism (shackle#1) RT 290-294, 369-372
Hammer v. Dagenhart (1918) RT 387-388
W. Oct. 17
2. Economic Substantive Due Process (shackle #2)—
Lochner
v. N.Y.(1905) RT 511-520, 547-550
F. Oct.19 Exam #2 (will cover thru topic III)
M. Oct 22 3. Court Comes
to Terms with the Modern Industrial Economy
W.Coast Hotel v.
Parish (1937) RT 550-552
NLRB v. Jones&Laughlin (1937) RT 372-373,
388-390
U.S. v.
Carolene Products footnote 4 (clip)(1938) RT 556-557
W. Oct.24 4. How Much is Commerce?
Wickard
v. Filburn (1942) RT390-392
Gonzales v. Raich (2005) RT 403-409
F. Oct 26 NO CLASSES
M. Oct 29
B.
Judging /Legislating for/against Civil Rights/Civil Liberties
Slaughterhouse
Cases (1873) RT 305-306, 514-515, 533-537
Civil Rights Cases (1883) RT 306-307, 358-363
W.Oct
31 Heart
of Atlanta Motel v.
Jones v. Alfred Mayer (1968) RT 307-308, 363-365
F. Nov.2
C. Court Cuts
Back National Power? RT 296-305, 373-375
U.S. v. Lopez (1995) RT 400-403
Printz v. U.S. (1997) RT 340-346
M. Nov. 5
U.S. v. Morrison (2000)--E http://www.augustana.edu/users/Podehnel/cases/morrison.htm
Tennessee v. Lane (2004) RT 354-358
W. Nov.7 -- Exam #3
F. Nov.9
V. How the United States
of America Became an Empire
Here begins 3 weeks on The Insular Cases--cover approx. 31 pp. per class
M. Nov.12
W. Nov. 14
F. Nov. 16
M. Nov.19
W. Nov.21
F. Nov. 23 --NO CLASS TURKEY DAY
M. Nov.26
W. Nov. 28
F. Nov.30
M. Dec. 3 TERM PAPERS DUE AND MOOT COURT DAY. ATTENDANCE REQUIRED.
W. Dec. 5 Exam # 4. (on the Insular Cases)