PSC 4361 American Constitutional Law I
Baylor University
Fall 2012
Professor: Dr. Matthew Brogdon
Teaching Assistant: Mr. David Little
Department of Political Science
Office: Burleson 302B (inside the political science dept.)
Office Hours: MW 12:15-2:15, R 2:00-4:00, or by appt.
Email: [email protected]
Phone: 254.710.2249
Course Description
In Federalist 51, Madison aptly described the challenge facing the framers of a constitution. "In
framing a government to be administered by men over men, the great difficulty lies in this: that
one must first enable the government to control the governed; and in the next place oblige it to
control itself." A constitution cannot oblige a government to control itself by the mere
enumeration of limits. The principal object of a constitution is therefore to arrange the
institutional forms of government in such a way as to give effect to limits. It was for precisely
this reason that the Framers of the Constitution of 1787 elected not to include a formal bill of
rights in the instrument. Many of the state bills of rights had proven to be no more than
"parchment barriers" in a system marked by legislative supremacy. The Framers therefore
focused their energies on the institutional form the new government was to assume.
This course will examine the structure of government established by the Constitution, focusing
primarily on the two fundamental institutional features that characterize that structure: separation
of powers and federalism. The primary, though not the only, medium through which we will
conduct this examination is judicial interpretation of the Constitution by the Supreme Court.
Required Texts
David M. O’Brien, Constitutional Law and Politics: Struggles for Power and Governmental
Accountability, vol. 1, 8th ed. (New York: Norton, 2011) isbn 978-0-393-93549-3
Tinsley E. Yarbrough, Race and Redistrticting: The Shaw-Cromartie Cases (Lawrence:
University Press of Kansas, 2002) isbn 978-0-7006-1219-2
Course Requirements
Discussion and Oral Advocacy: Students are expected to arrive prepared, familiar with the
assigned readings and ready to discuss them intelligently. To spur on class discussion, starting in
the second week of class we will begin relying on oral advocates. Each student will be assigned
two “principal” cases from the reading schedule and, on the days those cases are discussed in
class, will be expected to act as an advocate for one of the parties. Performance on this oral
component of the course will be used as part of the participation grade for the course.
Case Briefs: Given the complexity, quantity, and variety of the cases we will be covering in the
course, it is essential that students be familiar with the assigned readings prior to class
discussion. Note taking while reading is therefore indispensible. Writing “briefs”—one or two
page summaries of cases—is a widely used and effective means of learning assigned cases.
Instructions for writing case briefs may be found in the O’Brien text on pages 1101-04. At
minimum, students will be expected to prepare one case brief for each class meeting in which
cases are assigned, though it would be best to brief all assigned cases when possible. Briefs
should be kept in an orderly portfolio––a simple notebook or file folder will suffice. At various
points in the semester, students may be asked to make their portfolio available for perusal and
receive a grade for their progress. Typed briefs are preferable, but legibly handwritten ones are
acceptable. Please note that rules regarding plagiarism apply with equal force to case briefs.
Quizzes: As an inducement to keep up with the considerable reading load for the course, we will
occasionally take quizzes in class. These may or may not be announced ahead of time and may
be administered at any time during a class meeting. These will be considered part of the
participation grade for the course.
Exams: A midterm and a final exam will be administered.
Grades
Participation
Case Brief Portfolio
Midterm Exam
Final Exam
90.00 or more
88.00 or more
80.00 or more
78.00 or more
20%
20%
30%
30%
=A
=B+
=B
=C+
70.00 or more =C
60.00 or more =D
less than 60.00=F
Technology and In-Class Conduct
Any student behaving in a disruptive or disrespectful manner or acting in violation of the policies
outlined below will be dismissed from class and counted absent for the day.
Audio and video recordings of lectures are strictly prohibited without my express written
consent. Even when such consent is granted, recordings may not be distributed or published in
any form or forum without express written consent.
Computers and other electronic devices may not be used in class without my express written
consent, which may be granted pursuant to appropriate documentation.
Attendance Policy
Students missing more than three class meetings should expect to see their participation grade
substantially impacted.
To earn course credit in the College of Arts and Sciences, a student must attend at least 75% of
all scheduled class meetings. Any student who does not meet this minimal standard will
automatically receive a grade of “F” in the course. Any University-related activity necessitating
an absence from class shall count as an absence when determining whether a student has
attended the required 75% of class meetings.
Honor Code
Cheating on an assignment will, at the least, result in a zero for that assignment. In most cases,
cheating will earn immediate dismissal from the course and my earnest efforts to see the offender
further disciplined by the university. Attempting to deceive the instructor with respect to
attendance or the completion of assignments constitutes cheating and will be addressed as such.
Lying, in any form, will not be tolerated.
ADA Accommodations
If a student requires special accommodations due to a disability, the instructor must receive the
appropriate paperwork from the Office of Access and Learning Accommodation (254.710.3605)
before the test is accommodation is granted.
Course Schedule
The following schedule is exhaustive. However, given the subject matter of the course and its
intimate connection to ongoing controversies (including the presidential election) there may be
occasional changes, including deletions or additions. For example, I may direct our attention to
an additional video or print source. Such additions should be considered required course
material. I will notify every one of changes via email and, when possible, in class.
Assigned readings will be covered on the date listed and should be read prior to class.
Page ranges in (parentheses) refer to O’Brien, Constitutional Law and Politics, vol. 1
Introduction to the Course: Constitutional Law and Politics
M 8/20
Introduction to the course
W 8/22
Constitutional Law and Politics (1-21)
Reading: Constitution of the United States with Amendments
Chapter 1: The Supreme Court, Judicial Review, and Constitutional Politics
F 8/24
Establishing the Power of Judicial Review (23-42, 45-54)
Principal case: Marbury v. Madison (1803)
Secondary Cases: James Kent’s introductory law lecture (1794); The Federalist,
no. 49 (Madison, 1787, BB)
M 8/27
Contesting the Power of Judicial Review (43-45, 55-62)
Secondary Readings: Virginia and Kentucky Resolutions of 1798; President
Jackson’s Veto Message of 1832; President Roosevelt’s Radio Broadcast, March
9, 1937
W 8/29
The Politics of Constitutional Interpretation (63-99)
F 8/31
No Class (Annual Meeting of the American Political Science Association)
M 9/3
No Class (Labor Day)
Chapter 2: Law and Politics in the Supreme Court: Jurisdiction and Decision-Making Process
W 9/5
Jurisdiction and Justiciable Controversies: Standing (100-20, 130-48)
Principal Case: Flast v. Cohen (1968)
Secondary Cases: Valley Forge Christian College v. American United for
Separation of Church and State (1982); Lujan v. Defenders of Wildlife (1992);
Hein v. Freedom from Religion Foundation (2007)
F 9/7
Jurisdiction and Justiciable Controversies: Political Questions (121-29, 149-63)
Principal Case: Baker v. Carr (1962)
Secondary Cases: Goldwater v. Carter (1979)
M 9/10
The Decision-Making Process of the Supreme Court (172-88)
W 9/12
Impact of Supreme Court Decisions: Compliance and Implementation (189-229)
Principal cases: Linkletter v. Walker (1965); Commonwealth of Kentucky v.
Jeffrey Wasson (1992)
Secondary cases: Griffith v. Kentucky (1987); Whorton v. Brockting (2007);
Jaffree v. Board of School Commissioners of Mobile County (1983)
Chapter 3: Presidential Power, the Rule of Law, and Foreign Affairs
F 9/14
As Commander in Chief and in Foreign Affairs (230-47)
Principal Case: Dames & Moore v. Regan (1981)
Secondary Cases: U.S. v. Curtiss-Wright Export Corp. (1936)
M 9/17
The Treaty-Making Power and Executive Independence (248-72)
Principal case: Medellin v. Texas (2008)
Secondary cases: Missouri v. Holland (1920); United States v. Alvarez-Machain
(1992)
W 9/19
War-Making and Emergency Powers: Lincoln and Civil War (273-98, 331-36)
Principal Case: Ex parte Milligan (1866)
Secondary cases: Prize Cases (1863); The War Powers Resolution (1973)
F 9/21
War-Making and Emergency Powers: Japanese Internment (298-307)
Principal case: Korematsu v. United States (1944)
M 9/24
War-Making and Emergency Powers: The Detainee Cases (307-30, 337-45)
Principal Case: Rasul v. Bush (2004)
Secondary Cases: Boumediene v. Bush (2008)
Chapter 4: The President as Chief Executive in Domestic Affairs
W 9/26
National Security and Inherent and Emergency Powers (346-79)
Principal Case: Youngstown Sheet and Tube v. Sawyer (1952)
Secondary case: New York Times Co. v. United States (1971)
F 9/28
Appointment and Removal Powers (380-424)
Principal Case: Morrison v. Olson (1988)
Secondary Cases: Myers v. United States (1926); Humphrey’s Executor v. United
States (1937); Bowher v. Synar (1986)
M 10/1
Legislative Powers in the Administrative State (425-62)
Principal Case: Immigration and Naturalization Service v. Chadha (1984)
Secondary cases: Schechter Poultry Corp. v. United States (1935); Clinton v. City
of New York (1998)
Chapter 5: Congress: Membership, Immunities, and Investigatory Powers
W 10/3
Membership and Immunities
Principal Case: U.S. Term Limits, Inc. v. Thornton (1995)
Secondary Cases: Powell v. McCormack (1969); Gravel v. United States (1972)
F 10/5
Investigatory, Contempt and Impeachment Powers
Principal Case: Watkins v. United States (1957)
Secondary Cases: Barenblatt v. United States (1959); Walter L. Nixon v. United
States (1993)
M 10/8
Midterm Exam (covers material through chapter five)
Chapter 6: Congress: Legislative, Taxing, and Spending Powers
W 10/10
The Classic View of Congress’s Legislative Powers (546-72)
Principal Cases: McCulloch v. Maryland (1819); Gibbons v. Ogden (1824)
F 10/12
From Legal Formalism to the New Deal Crisis (573-88)
Principal Case: U.S. v. E.C. Knight Company (1895)
Secondary Cases: Hammer v. Dagenhart (1908)
M 10/15
From the New Deal Crisis to the Administrative State: Abdication (589-608)
Principal Case: U.S. v. Darby Lumber Co. (1941)
Secondary Cases: NLRB v. Jones & Laughlin Steel (1937); Wickard v. Filburn
(1942);
W 10/17
From the New Deal Crisis to the Administrative State: Civil Rights (609-18)
Principal Case: Heart of Atlanta Motel v. United States and Katzenbach v.
McClung (1964)
F 10/19
From the New Deal Crisis to the Administrative State: Revival? (618-68)
Principal Case: U.S. v. Lopez (1995)
Secondary cases: Boerne v. Flores (1997); U.S. v. Morrison (2000); Gonzalez v.
Raich (2005)
M 10/22
Taxing and Spending Powers (669-80)
Principal case: South Dakota v. Dole (1984)
Secondary case: Steward Machine Co. v. Davis (1937)
W 10/24
The Affordable Care Act (Blackboard)
Principal Case: National Federation of Independent Businesses v. Sebelius (2012)
Chapter 7: The States and American Federalism
F 10/26
States’ Power over Commerce and Regulation (692-731)
Principal cases: Southern Pacific Co. v. Arizona (1945); Maine v. Taylor (1986)
Secondary Case: Cooley v. Board of Wardens (1851)
M 10/29
The Tenth Amendment and the States (732-73)
Principal Case: Printz v. Unite States and Mack v. United States (1997)
Secondary Cases: Garcia v. San Antonion Metropolitan Transit Authority (1985);
New York v. United States (1992)
W 10/31
The Eleventh Amendment and State Sovereign Immunity (780-99)
Principal Case: Alden v. Maine (1999)
Secondary Cases: Seminole Tribe of Florida v. Florida (1996); Nevada Dept. of
Human Resources v. Hibbs (2003)
F 11/2
Judicial Federalism (801-20)
Principal Case: Cooper v. Aaron (1958)
Secondary Cases: Martin v. Hunter’s Lessee (1816); Younger v. Harris (1971)
M 11/5
State Courts and State Constitutional Law (820-32)
Principal Case: Michigan v. Long (1983)
Chapter 8: Representative Government, Voting Rights, and Electoral Politics
W 11/7
Representative Government and the Franchise (833-55)
Principal Case: South Carolina v. Katzenbach (1966)
F 11/9
Voting Rights and the Reapportionment Revolution: One man, one vote (856-80)
Principal Case: Reynolds v. Sims (1964)
Secondary Cases: Gomillion v. Lightfoot (1960); Baker v. Carr (1962, reprise);
Wesberry v. Sanders (1964)
M 11/12
Voting Rights and the Reapportionment Revolution: Gerrymandering (881-909)
Principal Case: Veith v. Jubelirer (2004)
Secondary Cases: Shaw v. Reno (1993); Hunt v. Cromartie (2001)
W 11/14
Yarbrough, Race and Redistricting, chap. TBA
F 11/16
Yarbrough, Race and Redistricting, chap. TBA
M 11/19
Yarbrough, Race and Redistricting, chap. TBA
W 11/21
No Class (Thanksgiving)
F 11/23
No Class (Thanksgiving)
M 11/26
Yarbrough, Race and Redistricting, chap. TBA
W 11/28
Campaigns and Elections: The Role of Courts (910-11, 918-29)
Principal Case: Bush v. Gore (2000)
Supplemental Reading: Jeffrey Pelvoorde, “Party Politics and the Judiciary” (BB)
F 11/30
Campaigns and Elections: Campaign Finance and Free Speech (912-14, 929-79)
Principal Case: Citizens United v. Federal Election Commission (2010)
Secondary Cases: Buckley v. Valeo (1976); McConnell v. FEC (2003); FEC v.
Wisconsin Right to Life (2007)
M 12/3
Campaigns and Elections: Political Patronage (915-17, 982-1005)
Principal Case: Rutan v. Republican Party of Illinois (1990)
Secondary Cases: Republican Party of Minnesota v. White (2002)
W 12/5
No Class (Study Days)
M 12/7
Final Exam (4:30-6:30 pm)