CONSTITUTIONAL LAW. Epstein and Walker, CONSTITUTIONAL LAW FOR A CHANGING AMERICA, Vol. 1: Institutional Powers and Constraints

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1 1 Political Science 310 Dr. Charles Hersch Fall 2014 uh 12:30-1:45/MC 426 Office Hours (R 1748): M 1-3, hh 10-11:30, 2-3 and by app t /c.hersch@csuohio.edu he following book is required: CONSIUIONAL LAW Epstein and Walker, CONSIUIONAL LAW FOR A CHANGING AMERICA, Vol. 1: Institutional Powers and Constraints here 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. his course has four parts: (I) he 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. his 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. o 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 error? (III) We then turn to the way the Court has limited or allowed expansion of the government s role in the economy. hese constitutional struggles about the government s economic role have focused around the Commerce Clause, the Contract Clause, the akings 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. hroughout, 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. o that end, we read the cases in a given area in chronological order, supplemented by documents and brief summaries of the historical/political context.

2 2 COURSE REQUIREMENS he 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 EXBOOK O 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 HIS 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 25% Midterm #2 25% Final 35% Briefs 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; 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 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 ASSIGNMENS Note: Cases labeled WEB are in the online case archive tied to your textbook. o access them, go to and click on the picture of our textbook ( Institutional Powers and Constraints ). hen find the link to the case assigned and click on it. o 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 and click on course reserves. hen find the list of course reserves by either course number or professor name and click on the link. Enter the code 9108.

3 3 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 (ry a Party Name Search. ) Please use the book s version of a case for your brief, however. here are useful links on the law library s website, especially by clicking the tabs at the top of the page: For interesting commentary on recent and ongoing cases as well as general legal issues, check out and (Note: an online version of the syllabus can be obtained here: Once you access it, you can directly utilize any of the links contained in it.) I. HE JUDICIARY AND IS ROLE Week 1 (August 26, 28) Introduction A. he Political Nature of Legal Interpretation h Adam Liptak, he Polarized Court (ON RESERVE or on the internet: US Constitution ( ) ext, Week 2 (September 2, 4) 1. Literal interpretation and the indeterminacy of language Walter F. Murphy, et al, extualism (READER, 1-5) Carter and Burke, Literalism: Sticking to the Words (READER, 6-9) Carter and Burke, he Supreme Law of the Land (READER, 10-17) Olmstead v. US (1928) (READER, 18-20) Katz v. US (1967) (READER, 21-26) h FILM: EYES ON HE PRIZE

4 4 Week 3 (September 9, 11) 2. Originalism Antonin Scalia, Originalism: he Lesser Evil (READER, 27-32) William J. Brennan, Jr., he Constitution of the United States: Contemporary Ratification (READER, 32-39) Marsh v. Chambers (1983) (READER, 40-43) h 3. Precedent Week 4 (September 16, 18) Kairys, Legal Reasoning (READER, 46-49) Carter and Burke, Change and Stability in Legal Reasoning (READER, 50-60) Karl N. Llewellyn, he Bramble Bush (I) (READER, 61-62) Karl N. Llewellyn, he Bramble Bush (II) (READER, 63-64) Braunfeld v. Brown (1961) (READER, 65-68) [BRIEF DUE ON HIS CASE] Sherbert v. Verner (1963) (READER, 69-73) B. he Establishment of Judicial Review and its Limits ext, Marbury v. Madison (1803) (63-72) Eakin v. Raub (1825) (82-9) Ex Parte McCardle (1869) (89-93) C. Justiciability: Political Questions h ext, 93-8 Luther v Borden (1849) (WEB) Baker v. Carr (1962) (98-104) Nixon v. US (1993) ( ) Week 5 (September 23, 25) D. Standing Flast v. Cohen (1968) (110-14) Hein v. Freedom from Religion Foundation (2007) (WEB) Sierra Club v. Morton (1972) (READER, 75-78)

5 5 II. PRESIDENIAL POWER A. Presidential powers during war: the civil war to WWII h ext, , , Abraham Lincoln, Special Message to Congress (READER, 79) Abraham Lincoln, Letter to Erastus Corning and Others (READER, 80-83) Prize Cases (1863) (279-83) Ex Parte Milligan (1866) (283-89) Ex Parte Quirin (1942) (290-94) Week 6 (September 30, October 2) u MIDERM #1 h Korematsu v. US (1944) ( ) Youngstown Sheet & ube Co v. Sawyer (1952) (301-8) Week 7 (October 7, 9) B. Presidential power and the War on error 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. he imperial presidency? Presidential immunity from the legal process h House Judiciary Committee Watergate Articles of Impeachment v. Richard M. Nixon, 1974 (READER, 93-96) US v. Nixon (1974) (227-33) Nixon v. Fitzgerald (1982) (237-41) Clinton v. Jones (1997) (241-46)

6 6 III. HE CONSIUION AND GOVERNMEN INERVENION IN HE ECONOMY Week 8 (October 14, 16) A. From the Marshall Court to the Age of Jackson ext, 120, Richard D. Heffner, Federalists vs. Republicans (READER, ) McCulloch v. Maryland (1819) (144-54, ) Gibbons v. Ogden (1824) (392-99) h Fletcher v. Peck (1810) (572-79) Heffner, Jacksonian Democracy (READER, ) Charles River Bridge v. Warren Bridge (1837) (584-89) [BRIEF DUE ON HIS CASE] Week 9 (October 21, 23) ext, Heffner, he Gilded Age (READER, ) Heffner, Grass Roots Rebellion (READER, ) US v. E.C. Knight (1895) (401-5) Munn v. IL (1877) (613-20) Lochner v. NY (1905) (623-29) B From the Gilded Age to Progressivism: he battle between laissez-faire and social welfare legislation h 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) ext, Pennsylvania Coal Co. v. Mahon (1922) (WEB) Heffner, he Roosevelt Revolution (READER, ) Schechter Poultry Corp. v. US (1935) (415-25) Home Building and Loan Association v. Blaisdell (1934) (593-97)

7 7 C. he triumph of the New Deal: the constitutional ratification of government regulation, the welfare state, and federal power h ext, National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) (429-35) US v. Darby Lumber Co. (1941) (436-39) Wickard v. Filburn (1942) (439-42) Week 11 (November 4, 6) MIDERM #2 h Heart of Atlanta Motel v. US (1964) (442-48) Philadelphia v. New Jersey (1978) (READER, ) Penn Central ransportation Co. v. City of New York (1978) (669-73) Week 12 (November 11, 13) HOLIDAY D. Reaganism and beyond: conservatism, limits on federal power, and the future of regulation h Ronald Reagan s Inaugural Address, 1981 (READER, ) Lucas v. South Carolina Coastal Council (1992) (654-58) US v. Lopez (1995) (455-60) Week 13 (November 18, 20) Gonzalez v. Raich (2005) (467-73) ext, Kelo v. City of New London (2005) (665-72) [BRIEF DUE ON HIS CASE] h National Federation of Independent Business v. Sebelius (2012) (473-82) (Be sure and also read the two privacy cases listed below for today) IV. HE RIGH O PRIVACY Buck v. Bell (1927) (READER, ) Skinner v. OK (1942) (READER, )

8 8 Week 14 (November 25, 27) h Griswold v. C (1965) (WEB) Roe v. Wade (1973) (WEB) HOLIDAY Week 15 (December 2, 4) Harris v. McRae (1980) (READER, ) Planned Parenthood of Southeastern PA v. Casey (1989) (READER, ) h Bowers v. Hardwick (1986) (READER, ) Lawrence v. exas (2003) (READER, ) FINAL EXAM: UESDAY, DECEMBER 9, 12:30-2:30 CLASSROOM CONDUC: 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. his 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. herefore, 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.