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Political Science 310
Dr. Charles Hersch
Fall 2014
TuTh 12:30-1:45/MC 426
Office Hours (RT 1748): M 1-3, ThTh 10-11:30, 2-3 and by app’t
687-4580/[email protected]
CONSTITUTIONAL LAW
The following book is required:
Epstein and Walker, CONSTITUTIONAL LAW FOR A CHANGING AMERICA, Vol. 1:
Institutional Powers and Constraints (Seventh Edition)
There is also a reader with required readings that will be available from the instructor for
approximately $8.
Our constitution was drafted and ratified during tumultuous political battles, and its
interpretation by the Supreme Court is intensely political as well. This course has four parts: (I)
The first considers the judicial branch and its role. We begin by establishing the political nature
of constitutional interpretation. Examining various methods of constitutional interpretation
(textualism, originalism, precedent), we find that none of them produces certain results, and thus
each leaves the judge with considerable discretion. This section of the course ends by a
consideration of various external and internal limits on the Court. (II) Next we look at
presidential power as interpreted by the Court. To what extent has the Court reined in the
president when he has attempted to take more power, from the Civil War to the War on Terror?
(III) We then turn to the way the Court has limited or allowed expansion of the government’s
role in the economy. These constitutional struggles about the government’s economic role have
focused around the Commerce Clause, the Contract Clause, the Takings Clause, and the Due
Process Clause. Always a contentious issue (e.g., the continuing controversy over Obamacare),
the Court has sometimes struck down government attempts to regulate the economy and
sometimes allowed it to do so. We will see how the Court’s stance toward this issue has been
influenced by the political currents of the era and the actions of other political actors. (IV)
Finally, we consider the constitutional right to privacy and what its development tells us about
the Court’s changing political role and our nation’s changing politics.
Throughout, our goal is to understand how the legal system works and what the Supreme Court
has said the constitution means. Unlike a law school course, however, we also focus on how the
Court’s interpretation of the constitution reflects and responds to larger political and ideological
conflicts in a given time period. To that end, we read the cases in a given area in chronological
order, supplemented by documents and brief summaries of the historical/political context.
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COURSE REQUIREMENTS
The most important requirement is that you attend class prepared to discuss the reading. For
each case you read, formulate the legal issue, locate the legal test used (if given) and underline or
highlight the main points of each opinion: I will expect you to know these in class discussion.
(You will learn in class how to come up with these pieces of information.) ALWAYS BRING
YOUR TEXTBOOK TO CLASS.
Formal assignments consist of two midterms, a final examination, and three briefs. (I will give
you a handout on how to write a brief and a sample. Do not use the model in the back of the
book.) Cases to be briefed are followed by the words [BRIEF DUE ON THIS CASE] on the
syllabus. Examinations may not be taken at times other than those regularly scheduled except in
extraordinary situations. Late briefs will be penalized, and none will be accepted more than a
week late. Only one late brief will be accepted per quarter. No incompletes will be given except
in the case of illness or emergency.
Your grade will be decided as follows:
Midterm #1
Midterm #2
Final
Briefs
25%
25%
35%
15%
Attendance is required. You can have five unexcused absences without penalty. After that, your
final grade will be lowered by 1/3 of a grade. It will be lowered an additional 1/3 of a grade for
every 3 subsequent unexcused absences. (E.g., missing 9-11 classes lowers your final grade by
2/3 of a grade; 12-14 classes, 1 grade, and so on.) Coming to class late counts as one-half of an
absence. If you are late, it is your responsibility to tell me after class so I can change your
absence to a lateness. If you miss class because of illness or emergency, let me know after you
have returned to class and your absences will be erased. Please do not call or email me before
class to tell me you will not be present. On the other hand, excellent participation (thoughtful
contributions to class discussion) can raise your final grade. I also reward improvement, so if
there is an upward trend to your work, the later (better) grades will be given more weight.
SCHEDULE OF READING ASSIGNMENTS
Note: Cases labeled “WEB” are in the online case archive tied to your textbook. To access them,
go to http://clca.cqpress.com and click on the picture of our textbook (“Institutional Powers and
Constraints”). Then find the link to the case assigned and click on it. To read the case, you
have to type in an access code that comes with your textbook. All “WEB” courses are also on
electronic course reserve. Go to http://scholar.csuohio.edu and click on “course reserves.” Then
find the list of course reserves by either course number or professor name and click on the link.
Enter the code 9108.
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Important note: reading the summary of a “Web” case in the textbook is not sufficient. I will
expect you to know the case in its full form. If you are interested in reading the full opinions,
rather than the edited versions presented in our book, any Supreme Court case can be found at
http://findlaw.com/casecode/supreme.html. (Try a “Party Name Search.”) Please use the
book’s version of a case for your brief, however. There are useful links on the law library’s
website, especially by clicking the tabs at the top of the page:
http://guides.law.csuohio.edu/constitutionallaw. For interesting commentary on recent and
ongoing cases as well as general legal issues, check out www.scotusblog.com and
http://balkin.blogspot.com.
(Note: an online version of the syllabus can be obtained here:
http://www.csuohio.edu/class/political-science/course-syllabi. Once you access it, you can
directly utilize any of the links contained in it.)
I.
THE JUDICIARY AND ITS ROLE
Week 1 (August 26, 28)
T
Introduction
A.
The Political Nature of Legal Interpretation
Th
Adam Liptak, “The Polarized Court” (ON RESERVE or on the internet:
http://www.nytimes.com/2014/05/11/upshot/the-polarized-court.html.)
US Constitution (687-96)
Text, 12-23
Week 2 (September 2, 4)
T
1. “Literal interpretation” and the indeterminacy of language
Walter F. Murphy, et al, “Textualism” (READER, 1-5)
Carter and Burke, “Literalism: Sticking to the Words” (READER, 6-9)
Carter and Burke, “The Supreme Law of the Land” (READER, 10-17)
Olmstead v. US (1928) (READER, 18-20)
Katz v. US (1967) (READER, 21-26)
Th
FILM: “EYES ON THE PRIZE”
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Week 3 (September 9, 11)
T
2. Originalism
Antonin Scalia, “Originalism: The Lesser Evil” (READER, 27-32)
William J. Brennan, Jr., “The Constitution of the United States: Contemporary
Ratification” (READER, 32-39)
Marsh v. Chambers (1983) (READER, 40-43)
Th
3. Precedent
Kairys, “Legal Reasoning” (READER, 46-49)
Carter and Burke, “Change and Stability in Legal Reasoning” (READER, 50-60)
Karl N. Llewellyn, “The Bramble Bush” (I) (READER, 61-62)
Karl N. Llewellyn, “The Bramble Bush” (II) (READER, 63-64)
Braunfeld v. Brown (1961) (READER, 65-68) [BRIEF DUE ON THIS CASE]
Sherbert v. Verner (1963) (READER, 69-73)
Week 4 (September 16, 18)
B.
The Establishment of Judicial Review and its Limits
T
Text, 58-9
Marbury v. Madison (1803) (64-74)
Eakin v. Raub (1825) (82-9)
Ex Parte McCardle (1869) (89-92)
C.
Justiciability: Political Questions
Th
Text, 92-7
Luther v Borden (1849) (WEB)
Baker v. Carr (1962) (97-103)
Nixon v. US (1993) (103-7)
Week 5 (September 23, 25)
D.
Standing
T
Text, 107-9
Flast v. Cohen (1968) (109-14)
Hein v. Freedom from Religion Foundation (2007) (WEB)
Sierra Club v. Morton (1972) (READER, 75-78)
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II.
PRESIDENTIAL POWER
A.
Presidential powers during war: the civil war to WWII
Th
Text, 180-81, 247-48, 273-75
Abraham Lincoln, “Special Message to Congress” (READER, 79)
Abraham Lincoln, Letter to Erastus Corning and Others (READER, 80-83)
Prize Cases (1863) (275-79)
Ex Parte Milligan (1866) (279-85)
Ex Parte Quirin (1942) (286-90)
Week 6 (September 30, October 2)
Tu
MIDTERM #1
Th
Korematsu v. US (1944) (290-96)
Youngstown Sheet & Tube Co v. Sawyer (1952) (297-304)
Week 7 (October 7, 9)
B.
Presidential power and the War on Terror
T
Bush administration memo on the applicability of the Geneva
Conventions to suspected terrorists (excerpt) (READER, 85)
Bush administration memo on torture (excerpt) (READER, 86-87)
Military Commissions Act of 2006(excerpts) (READER, 88-89)
Hamdi v. Rumsfeld (2004) (WEB)
Boumediene v. Bush (2008) (WEB)
John Yoo, “War by Other Means” (excerpt) (READER, 90-91)
C.
The imperial presidency? Presidential immunity from the legal process
Th
“House Judiciary Committee Watergate Articles of Impeachment
v. Richard M. Nixon, 1974” (READER, 93-96)
US v. Nixon (1974) (223-39)
Nixon v. Fitzgerald (1982) (231-36)
Clinton v. Jones (1997) (236-41)
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III.
THE CONSTITUTION AND GOVERNMENT INTERVENTION IN THE
ECONOMY
Week 8 (October 14, 16)
A.
From the Marshall Court to the Age of Jackson
T
Text, 119, 122
Richard D. Heffner, “Federalists vs. Republicans” (READER, 97-100)
McCulloch v. Maryland (1819) (143-52, 330-36)
Gibbons v. Ogden (1824) (400-7)
Th
Fletcher v. Peck (1810) (552-59)
Heffner, “Jacksonian Democracy” (READER, 101-102)
Charles River Bridge v. Warren Bridge (1837) (564-69) [BRIEF DUE ON THIS
CASE]
Week 9 (October 21, 23)
T
Text, 585-87
Heffner, “The Gilded Age” (READER, 103-105)
Heffner, “Grass Roots Rebellion” (READER, 106-108)
US v. E.C. Knight (1895) (407-12)
Munn v. IL (1877) (592-600)
Lochner v. NY (1905) (602-9)
B
From the Gilded Age to Progressivism: The battle between laissez-faire and
social welfare legislation
Th
Heffner, “Boom and Bust” (READER, 109)
Hammer v. Dagenhart (1918) (345-50)
Bailey v. Drexel Furniture Co. (1922) (515-18)
Week 10 (October 28, 30)
T
Text, 641-44
Pennsylvania Coal Co. v. Mahon (1922) (WEB)
Heffner, “The Roosevelt Revolution” (READER, 110-111)
Schechter Poultry Corp. v. US (1935) (415-24)
Home Building and Loan Association v. Blaisdell (1934) (572-76)
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C.
The triumph of the New Deal: the constitutional ratification of government
regulation, the welfare state, and federal power
Th
Text, 428-32
National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937)
(432-38)
US v. Darby Lumber Co. (1941) (438-41)
Wickard v. Filburn (1942) (441-44)
Week 11 (November 4, 6)
T
MIDTERM #2
Th
Heart of Atlanta Motel v. US (1964) (467-71)
Philadelphia v. New Jersey (1978) (READER, 115-120)
Penn Central Transportation Co. v. City of New York (1978) (647-51)
Week 12 (November 11, 13)
T
HOLIDAY
D.
Reaganism and beyond: conservatism, limits on federal power, and the
future of regulation
Th
“Ronald Reagan’s Inaugural Address, 1981” (READER, 112-114)
Lucas v. South Carolina Coastal Council (1992) (654-58)
US v. Lopez (1995) (445-52)
Week 13 (November 18, 20)
IV.
T
Gonzalez v. Raich (2005) (456-64)
Text, 658-59
Kelo v. City of New London (2005) (665-72) [BRIEF DUE ON THIS CASE]
Th
National Federation of Independent Business v. Sebelius (2012) (WEB) (Be sure
and also read the two privacy cases listed below for today)
THE RIGHT TO PRIVACY
Buck v. Bell (1927) (READER, 121-124)
Skinner v. OK (1942) (READER, 125-127)
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Week 14 (November 25, 27)
T
Griswold v. CT (1965) (WEB)
Roe v. Wade (1973) (WEB)
Th
HOLIDAY
Week 15 (December 2, 4)
T
Harris v. McRae (1980) (READER, 128-132)
Planned Parenthood of Southeastern PA v. Casey (1989) (READER, 133-139)
Th
Bowers v. Hardwick (1986) (READER, 140-145)
Lawrence v. Texas (2003) (READER, 145-154)
FINAL EXAM: TUESDAY, DECEMBER 9, 12:30-2:30
CLASSROOM CONDUCT: I know that this might be intuitive to some, but I would like to make my
expectations clear.
1. Please put away all phones before class. A ringing phone is disruptive, and texting is rude. If I see a
phone on your desk or notice you texting during class you will be marked absent for two classes.
2. Please do not read anything during class other than the course materials we are discussing. This
includes reading for our class that you are behind on. It is fine (and helpful) to look for relevant passages
from the reading we are discussing.
3. Please make a concerted effort to come to class on time because coming into the classroom late is
disruptive.
4. If you have not done the reading, please refrain from speaking about it. I assume that what you say in
class is informed by your encounter with the reading, even if you do not understand it entirely. Even if
we are not discussing the text directly, I assume that your remarks are anchored in knowledge of the
reading. I am not discouraging class discussion, which I welcome. However, spontaneous remarks not
based on having done the reading do not advance the conversation.
5. Strive to keep the tone of class discussion friendly and respectful, even if you passionately disagree
with what someone else has said.
6. Please raise your hand to speak. In order to have a balanced conversation, I will call on the person
who has spoken the least. Even if you are the first to raise your hand, I may not call on you for this
reason; no personal slight is intended.
7. Laptops may only be used for taking notes. Admittedly, I have no way of enforcing this. However,
internet surfing during class is correlated with lower grades. It also distracts other students. Therefore,
anyone using a laptop must sit in the back row of the room. (Or the back row of students.) Anyone using
a laptop not in the back row will be asked to turn it off.