Constitutional Law I Fall 2015

Transcription

1 Constitutional Law I Fall 2015 Ilya Somin Professor of Law George Mason University School of Law Office: Rm. 322 Ph: isomin@gmu.edu Office Hours: Monday 3-5 PM, or by appointment. Course Time Monday and Wednesday: 2-3:50 PM Reading Materials Textbook: Brest, Levinson, Balkin, Amar, and Siegel, Processes of Constitutional Decisionmaking (6th Ed. 2015) (BLBAS) and 2015 Supplement (Supp). Available at GMU Book Store. Purchase of the supplement is optional, as only one case from it will be assigned. However, students may wish to know that I will use the supplement again in Constitutional Law II in the spring. Some cases are available at a website put together by the Book s authors (listed as BLBAS Website). The website address is: Two cases, Hamdan v. Rumsfeld and Boumediene v. Bush, are available in a PDF file in the course materials section of the class TWEN page (CM/TWEN). Packet of Supplementary Readings: Available at the GMU copy center (Packet). Some readings are instead available on the class TWEN site. When specific pages are assigned in cases not in the textbook or supplement, you should assume that the page numbers referred to are those in the U.S. reports unless otherwise noted. Grading Grades will be based on a combination of the final exam and class participation. Specifically, the course grade will be the final exam grade plus a bonus for good class participation as high as approximately 1/2 of a letter grade (e.g. a B+ might become an A-). Details of the final exam 1

2 will be announced later in the semester. Class participation will be assessed on a combination of quantity and quality. Recording I hereby authorize students enrolled in the class to make audio or visual recordings of the class sessions, so long as they are solely for private, noncommercial uses, and the recording process does not disrupt the class. Assignments Although I will try to stick to the schedule, we may occasionally fall behind. In such an unfortunate case, we will begin the next class with the next case or other reading on the syllabus, unless I say otherwise. Note: In a few cases, I may have included a complete case or article in the packet, but the syllabus indicates specific pages for you to read. You are only responsible for the pages noted in the syllabus, though you may wish to skim the rest. Pages noted in the syllabus refer to page numbers in the US reports or Supreme Court reports (for cases) or journal (for articles), NOT to other page numbers that may be present in the packet. August 19: Introduction Constitution of the United States BLBAS 1-15 Declaration of Independence available at Articles of Confederation, available at BLBAS August 24: Modes of Constitutional Interpretation: McCulloch v. Maryland and the Bank of the United States McCulloch v. Maryland BLBAS Philip Bobbitt, Modalities of Constitutional Argument (Packet) August 26: McCulloch v. Maryland and the Necessary and Proper Clause (continued) McCulloch (continued) BLBAS 57-75, United States v. Comstock, 130 S.Ct (2010) (TWEN) Constitutionality of the Louisiana Purchase BLBAS August 31: The Power of Judicial Review Marbury v. Madison BLBAS Cooper v. Aaron 358 U.S. 1 (1958) (TWEN) 2

3 September 2: Theories of Constitutional Interpretation John Hart Ely, Representation-Reinforcement (from Democracy and Distrust) (Packet) Laurence Tribe, The Puzzling Persistence of Process-Based Constitutional Theories (Packet) David Strauss, Common Law Constitutional Interpretation (Packet) Randy Barnett, An Originalism for Nonoriginalists (Packet) September 9: Federalism I: Congressional Power and Minority Rights Dred Scott v. Sandford BLBAS (federal powers issue only) Prigg v. Pennsylvania BLBAS Reynolds v. United States BLBAS September 14: Federalism I: Congressional Power and Minority Rights (continued) Civil Rights Cases BLBAS South Carolina v. Katzenbach BLBAS Katzenbach v. Morgan BLBAS September 16: Federalism I: Congressional Power and Minority Rights (continued) City of Boerne v. Flores BLBAS United States v. Morrison BLBAS Website (Read only the part about the Section 5 issue, plus the first 2-3 pages of the Commerce Clause portion of the opinion, which states the facts of the case) Shelby County v. Holder BLBAS September 21: Federalism II: The Commerce Power Gibbons v. Ogden BLBAS United States v. E.C. Knight, 156 U.S. 1 (1895), (TWEN) focus on pp (majority opinion) Champion v. Ames BLBAS Hammer v. Dagenhart BLBAS September 23: Federalism II: The Commerce Power (continued) NLRB v. Jones & Laughlin Steel BLBAS United States v. Darby BLBAS Wickard v. Filburn BLBAS Franklin D. Roosevelt, Constitution Day Address (1937) BLBAS September 28: Federalism II: The Commerce Power (continued) 3

4 Heart of Atlanta Motel BLBAS 656 Katzenbach v. McClung BLBAS United States v. Lopez BLBAS September 30: The Commerce Power (continued) United States v. Morrison BLBAS Website. (Commerce Clause part only) Gonzalez v. Raich BLBAS Website October 5: Federalism II: The Treaty Power Missouri v. Holland BLBAS Bond v. United States, 134 S.Ct (2014) (TWEN) October 7: Federalism III: The Tenth Amendment - State Sovereignty as an Affirmative Limit on Federal Power Garcia v. San Antonio Metropolitan Transit Authority BLBAS New York v. United States BLBAS Printz v. United States BLBAS October 13 (Tuesday observing a Monday schedule): Federalism IV: The Eleventh Amendment/The Contract Clause Seminole Tribe of Florida v. Florida 517 U.S. 44 (1992) (TWEN), pp , Board of Trustees v. Garrett BLBAS Website Fletcher v. Peck BLBAS Home Bldg. & Loan Association v. Blaisdell BLBAS October 14: The Spending Power United States v. Butler BLBAS Steward Machine Co. v Davis, BLBAS South Dakota v. Dole, 483 U.S. 203 (1987) (TWEN) NFIB v. Sebelius, BLBAS (Spending Clause issue only) October 19: The Health Care Case/Inherent Powers over Foreign Affairs NFIB v. Sebelius, BLBAS (Commerce and Necessary and Proper Clause issue) Chae Chan Ping v. United States, 130 U.S. 581 (1889) (TWEN) October 21: Inherent Power over Foreign Affairs (Continued)/Executive War Powers During the Civil War Zivotofsky v. Kerry BLBAS Supp or 135 S.Ct (2015)) Prize Cases BLBAS Ex Parte Merryman BLBAS

5 The Emancipation Proclamation BLBAS Legal Tender Cases BLBAS October 26 Executive War Powers (Continued) Korematsu v. United States BLBAS Ex Parte Quirin, 317 U.S. 1 (1942) (TWEN) Youngstown Sheet & Tube v. Sawyer BLBAS October 28: Executive War Powers (Continued) The Constitutionality of Military Intervention BLBAS Hamdi v. Rumsfeld BLBAS Hamdan v. Rumsfeld, 548 U.S. 557 (2006) CM/TWEN (cover only briefly) November 2: Executive War Powers (continued)/ Separation of Powers I: The President and Congress Boumediene v. Bush, 553 U.S. 723 (2008) CM/TWEN United States v. Nixon, 506 U.S. 224 (1993) (TWEN) Bowsher v. Synar (Packet) November 4: Separation of Powers I: The President and Congress (continued) INS v. Chadha BLBAS Morrison v. Olson BLBAS Edmond v. United States BLBAS November 9: The President and Congress (Continued)/Separation of Powers II: The Judiciary and the Political Branches NLRB v. Noel Canning BLBAS Ex Parte McCardle, 74 U.S. 506 (1869) (TWEN) Walter Nixon v. United States, 506 U.S. 224 (1992) (TWEN) November 11: Separation of Powers III: Standing Allen v. Wright, 468 U.S. 737 (1984), , , (TWEN) Lujan v. Defenders of Wildlife, 504 U.S. 555 (1995), , (TWEN) Friends of the Earth v. Laidlaw 528 U.S. 167 (2000), , (TWEN) November 16: Standing (continued) & Separation of Powers IV: The Political Questions Doctrine Massachusetts v. EPA, 549 U.S. 497 (2008), , (TWEN) Baker v. Carr, 369 U.S. 186 (1962), , , , (TWEN) 5

6 Goldwater v. Carter, 444 U.S. 996 (1979) (TWEN) November 18: The Constitutional Amendment Process Reread US Constitution, Article V BLBAS (adoption of the Fourteenth Amendment) Coleman v. Miller 307 U.S. 433 (1939) (TWEN), pp Bruce Ackerman, We the People (Packet) Richard A. Posner, This Magic Moment (Packet) November 23: Control of the Electoral Process US Term Limits v. Thornton BLBAS Bush v. Gore BLBAS Website Cass Sunstein, Of Law and Politics, (Packet), pp. 1-8 Richard A. Epstein, In Such a Manner as the Legislature Thereof May Direct: The Outcome in Bush v. Gore Defended (Packet) Cass Sunstein, Order Without Law (Packet) November 30: Conclusion & Questions about the Final Exam Questions about Final Exam Thomas Jefferson, Letter to James Madison, December 1789 (Packet) James Madison, Letter to Thomas Jefferson, February 1790 (Packet) Summary and Conclusion 6