PS 422/522-001 Constitutional Law
David Johns
Fall 2012
670A UPA
18:00–21:30 Tuesday, 325 CH
503725-3251
[email protected]
du
This is the second term in a three term sequence examining US constitutional law from a
legal and political science perspective. Course work is predicated upon the student having
considerable knowledge of the Supreme Court both as a legal and political institution, on
the case law governing the powers of the branches, and the basic elements of judicial
reasoning. The course will focus on the Court’s decisions defining the relations between
national government and economy, the constitutional underpinnings of regulatory
government, the application of the Bill of Rights to the states through the Fourteenth
Amendment, and the First Amendment’s religion clauses. Extensive use will be made of
case law. Unlike law school, the class will emphasize the political context of decisions
and the influence of interests on outcomes. Students are expected to have a good grasp of
cases prior to the days they will be discussed in class so they can participate effectively.
There will be a midterm exam and a comprehensive final exam, both essay-type and
weighted equally. Exams are open book and note. They may be submitted by email or
hard copy. Students are required to briefs two cases–McCulloch v Maryland and NLRB v
Jones & Laughlin Steel. The briefs are not graded, but failure to submit both briefs will
result 1/3 of a point reduction in your grade. Thus, if you earn a B+ you will receive a B.
Those taking the course for graduate credit will be required to submit a paper (~15 pages)
on a topic that analyzes a major court decision or related decisions in terms of policy and
politics. See attached.
Texts: David O'Brien: Constitutional Law & Politics, V. 1 & V. 2, 8E or latest
David O’Brien: Storm Center (recommended if you have not read it for
PS421)
Singham, Mano: God and Darwin
Other, short readings
Sep 25 1. Introduction
Reading: Kairys Introduction
2. Constitution and Economy
Reading: Kairys ch 22-24
Consolidating the Accumulation State
Reading: O’Brien Vol 2, ch 3
McCulloch v Maryland } in O’Brien
Gibbons v Ogden
} Vol 1, ch 6
Fletcher v Peck
Dartmouth College v Woodward
Charles River Bridge Co. v Warren Bridge Co.
Cooley v Board of Wardens } in O’Brien Vol 1, ch 7
Oct 2
Laissez Faire & "Substantive" Due Process
Reading: O’Brien Vol 2, ch 3
The Slaughterhouse Cases
Munn v Illinois
Lochner v New York
Muller v Oregon
Santa Clara County v Southern Pacific [118 U.S. 398 (1886)] online; skim
U.S. v E.C. Knight
Hammer v Dagenhart
Industrial Transformation & Rise of the Regulatory State
Reading: O’Brien Vol 1, ch 6
Schechter Poultry v U.S.
NLRB v Jones & Laughlin Steel Co.
Oct 9
Brief # 1 due
West Coast Hotel v Parrish
Wickard v Filburn
Lincoln Federal Labor Union v Northwestern Iron & Metal Co.
Heart of Atlanta Motel v. U.S.
Katzenbach v. McClung
U.S. v Lopez
Reno v Condon
U.S. v Morrison
Gonzales v Raich [125 S Ct 2195 (2005)] online at
www.supremecourtus.gov
Rapanos v U.S. [547 US —, 126 S.Ct 2208 (2006)] online at
www.supremecourtus.
gov
Oct 16 3. Nationalization of (some of) the Bill of Rights
Reading: O'Brien Vol 2, ch 4
Short reading to be assigned
Barron v Baltimore
Slaughterhouse Cases
Hurtado v California
Gitlow v New York
Palko v Connecticut
Adamson v California
Rochin v California
Grisvold v Connecticut
Duncan v Louisiana
Oct 23
Midterm starts (handed out)
Brief # 2 due
4. Equal Protection
Reading: O'Brien Vol 2, ch 12
Kairys ch 12-16
“Race”
Dred Scott v. Sandford
Civil Rights Cases
Plessy v. Ferguson
Shelley v. Kraemer
Oct 30
Midterm due at beginning of class
Brown v. Bd of Educ, Topeka KS
Bolling v. Sharpe
Brown v. Bd of Educ, Topeka KS (Brown II)
Cooper v. Aaron
Milliken v. Bradley
Regents, U of Cal v. Bakke
City of Richmond v. J.A. Croson
Freeman v. Pitts
Nov 6
U.S. v. Fordice
Grutter v Bollinger
Gender
Frontierro v. Richardson
Craig v. Boren
Michael M. v. Superior Ct of Sonoma County
U.S. v Virginia
Sexual Orientation
Romer v. Evans
Class
Shapiro v. Thompson
San Antonio Independent School Dst v. Rodriquez
Age
Plyer v. Doe
Nov 13 5. Religion and Government
Reading: O'Brien Vol 2, ch 6
Singham
Nov 20
Nov 27
Establishment
Everson v. Bd. of Educ. Ewing Township
Engel v. Vitale
Abington School Dist. v. Schemp
Lemon v. Kurtzman
Wallace v. Jaffree
Lee v. Weisman
Zobrest v. Catalina Foothills School Dist.
Bd. of Educ. Kiryas Joel Village v. Grumet
Rosenberger V. Univ of Virginia
Agostini v. Felton
Zelman v Simmons-Harris
Cutter v Wilkinson
Van Orden v Perry
McCreary v ACLU of Kentucky
Kitzmiller v Dover, www.pamd.uscourts.gov/kitzmiller/kitzmiller_342.pdf
Free Exercise
Sherbert v. Verner
Wisconsin v. Yoder
Employment Div., Dept. of Human Resources of Oregon v. Smith
Church of Lukumi Babalu Aye v. Hialeah
City of Boerne v Flores
Locke v Davey
Summary
Final exam study questions distributed & discussed
Dec 4
Final Exam: Tuesday, 19:30-21:30
Briefing a Case
One of the best ways of analyzing a case is to “brief” it, i.e. describe each element that
constitutes a court decision. Eventually you will be able to do this as you read a case,
although complicated cases can always benefit from briefing. Ultimately you want to be
able to determine what rule the court is giving voice to.
The elements of a decision are:
1. Lower Court Action--the facts in dispute at the trial court level, the determination
made about the facts at the trial court level, the rules of law applied to those facts (note
constitutional or statutory provisions and common law rules) and the result reached as a
consequence, i.e. the lower court’s decision and an opinion if issued.
2. Procedural setting or basis for jurisdiction of the appeals court--on what basis has the
case been brought before the court whose decision you are reading.
3. Issues before court whose opinion you are reading--what needs to be decided.
4. Arguments of the parties in the case.
5. Decision of the court--the action taken by the court (remand, overturn, uphold, etc)
6. Holding of the court--the rule of law the appellate court applies to the issues/facts
before it; the opinion of the court explains the reasoning for the holding and includes the
authorities it relies on. 7. Concurring opinions, if any. These are alternate explanations
for reaching the same decision as others that make up a majority. Concurring opinions
may share much of the holding or may rely on different arguments, rules or authorities.
8. Dicta--judges/justices will often state principles or rules of law that they believe are
important but are not necessary to the determination of the issues before them. Such rules
are important because they indicate what a judge/justice is likely to do in the future, but
they are not part of the holding because, as just noted, they are not necessary to the
determination of the issues before the court.
9. Dissenting opinions—judges/justice may reach a different decision and write to
explain the basis on which they support a different outcome.
10. Although judges/justices are compelled to explain themselves in terms of rules of
law, many other factors influence them: 1) politics, including the views of other branches
of government, of powerful interest groups and to some extent public opinion; 2)
personal values and agendas; 3) changing social and scientific realities; 4) psychological
predispositions. To understand the court and what it is likely to do in the future a
knowledge of these factors is important.
Example of a Brief
Munn v. Illinois, 94 US 113 (1877)
Facts: Munn, owner of an Illinois grain-elevator serving Illinois farmers, was alleged to
have charged rates in excess of those set by the state of Illinois, a crime under Illinois
law.
Statutes: Illinois statute regulating grain elevators.*
U.S. Constitution, Article 1, Sec 8, Commerce Cl.
U.S. Constitution, 14th Amendment, Sec 1, Due Process Cl.
Lower Court Action: Trial court convicted Munn; Illinois Supreme Court upheld
conviction.
Jurisdiction: Appeal to the U.S. Supreme Court on a Federal Question.**
Issues: Is the act of the Illinois legislature regulating Illinois grain-elevators
unconstitutional because it interferes with interstate commerce or deprives Munn of a
protected property right without due process.
Arguments: Illinois: The statute is within the power of the state to regulate for the health
and welfare of its people and is not a deprivation of property rights; nor is it an
interference with interstate commerce.
Munn: The statute exceeds the power of the state because it deprives
appellant of property without due process and interferes with the power of Congress to
regulate interstate commerce.
Holding (C.J. Waite; 7-2): State regulation of the price charged by grain-elevator
operators is not a deprivation of property under the due process clause of the 14th
Amendment because it has long been established that private property which affects the
public interest may be so regulated and is not a deprivation of property. Nor is the
regulation a violation of the commerce clause because it only indirectly affects interstate
commerce and Congress has not acted in this area. Judgment of
the Illinois Supreme Court is affirmed.
Dissent (Field): The Illinois regulation does work a deprivation of a protected property
right and is therefore unconstitutional. Grain-elevators do not "affect the public interest."
Dicta: States, regulating their own affairs as here, may in some cases encroach upon the
exclusive domain of Congress to regulate interstate commerce. Where states overreach in
their regulation of property a political question is raised, properly resolved in the
electoral, not judicial arena.
*If available quote relevant language of statute verbatim and include citation to code title
and section.
**When available give precise citation, i.e. U.S.Code, etc.
PS 522/523 Graduate Paper
This paper (~15 pages) should be on a topic covered this term. It will analyze a major
court decision or related decisions in terms of policy and politics. Major court decisions,
by their nature, involve the exercise of discretion in two senses. First, the court exercises
its judgment in determining whether a case is important enough to grant a writ of
certiorari. It may grant or deny cert for a variety of reasons: to affirm existing law, clarify
the law, make new law, avoid allowing bad law to stand, etc. The court also exercises
discretion on the merits of the issue, be it the reach of the commerce clause, the test used
to determine whether an affirmative action program is permissible, or when
accommodation of free exercise constitutes establishment of religion.
The paper should focus on a topic limited enough to be analyzed in 15 pages. The paper
should attempt to explain the majority’s decision on an issue in a case or set of cases in
terms of the relevant legal principles and precedent, and the political interests and values
at stake. As an example, both Lopez and Morrison seem to break with previous court
decisions on the commerce clause. A paper addressing this question might address
whether and how Lopez and Morrison alter commerce clause jurisprudence, and what
underlying political values and interests are furthered by the decision.
You could also choose to track the development of the law in a particular area; of
particular interest are those areas where early dissents have come to hold sway as the
court’s make up has changed.
The paper is due last class meeting (not finals week).