MINNESOTA STATE UNIVERSITY MOORHEAD POL CONSTITUTIONAL LAW I: POWERS and INSTITUTIONS FALL SEMESTER 2015

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1 MINNESOTA STATE UNIVERSITY MOORHEAD POL CONSTITUTIONAL LAW I: POWERS and INSTITUTIONS FALL SEMESTER 2015 Instructor: Paul A. Kramer, J.D., Ph.D., Professor, Political Science Office: 380 A MacLean Hall Phone: (218) Office Hours: MTWHF: 8 a.m. to 9 a.m. AND MWF: 10:50 a.m. to 12:30 p.m. Class Meets: TH: 9 to 10:15 BR263 Electronic mail: paul.kramer@mnstate.edu Website: Course Catalog Description: This course focuses on the topics of judicial review, separation of powers, federalism, and economic regulation, including commerce and taxation, substantive due process, and eminent domain. Offered: Fall Semester, all years. Prerequisite: POL 120. Course Content: Students should begin the process of learning to think like lawyers, through close case analysis and development of legal reasoning skills. The course should teach students how to argue positions, based on the use of precedent, fairness, public policy concerns, and logic, regardless of personal biases or opinions regarding a given subject. In the process of this course, students will also gain a keen appreciation of American governmental structure, as well as the problems of courts making law through broad interpretations of specific Constitutional clauses. Outline of Major Content Areas: 1. Origins of the separation of powers and checks and balances approach of the U.S. Constitution 2. The Judiciary---Article 3---judicial review, constraints on judicial power, justiciability 3. The Legislature---Article 1---sources and scope of legislative power 4. The Executive---Article 2---domestic and foreign affairs powers, the electoral college 5. Separation of powers issues---domestic powers the legislative veto, delegation and usurpation; foreign affairs issues war powers, national emergencies 6. Federalism---pre-emption of state laws, exclusive vs. concurrent powers 7. The interstate commerce power---origin, development, limitations 8. The power to tax and spend income tax, restrictions on state taxation authority 9. Economic liberties---the contract clause, economic substantive due process, the eminent domain power 10. Contemporary thinking on the U.S. constitutional scheme

2 Course Learning Objectives: 1. Students will be able to use relevant legal materials such as legislative history, constitutional text, statutory interpretation and past precedent to analyze historical and contemporary problems of constitutional law. 2. Students will be able to make sophisticated arguments that reflect both political and legal realities concerning the development of institutional powers and constraints in the U.S. 3. Students will appreciate the historical development of American federalism, separation of powers, the interstate commerce provision, taxation and spending, eminent domain, economic substantive due process and the contracts clause of the U.S. Constitution. Text: (Required) Epstein and Walker, Constitutional Law for a Changing America: Powers/Constraints, 8 th Ed. Course Assignments: 300 points total 3 Examinations each worth 100 points for a total of 300 points. All examinations in this course will be open book, open notes. The final examination is NOT comprehensive. Grading: Grades will be determined by the use of a class comparison rubric or curve where students overall scores will be placed in rank order with deviations between grades determined in part by the overall distribution of scores within a given class. The +/- grading scale in assigning final grades may be utilized at the instructor s discretion. Periodic estimates of the grading curve will be provided to students throughout the semester after each examination. Missed Examinations Policy: If you miss a regularly scheduled examination, you have two options: 1) Accept a zero for the exam. 2) Take a make-up exam scheduled just prior to the last two weeks of the semester. Your grade on that examination will replace the missing test in your overall grade computation. Make-up exams may consist of an alternate form of the exam regularly given to the class for a given section of the course at the instructor s discretion. Because I am providing this option for those who miss a regularly scheduled examination, there will be no opportunity to make up a regular exam other than this alternative. If a student must miss a regularly scheduled exam for a school sponsored event, alternate arrangements must be made as far in advance as possible and the instructor should be made aware of potential conflicts within the first two weeks of the semester. As a consequence of this arrangement, any student missing two or more regularly scheduled examinations will accept a zero for the second and all subsequent examinations missed, irrespective of the reason cited for the absence. There will be no accepted excuses for missing the final examination. Students may appeal to make-up a missed final examination after the semester ends. Any such make-up examination will be administered at the sole discretion of the instructor and at a time convenient to said instructor. To even be considered for a makeup examination, I need DOCUMENTATION of your absence. Illness, child care emergency,

3 family emergency or significant family commitment are the ONLY reasons I will accept for excusing an absence from an examination and I will require some form of written proof of why you were not in class to take the test. If you oversleep, your car didn t start, you forgot, or you have some other ridiculous excuse, you had better find me in person or by telephone THAT DAY ( does NOT suffice) and explain yourself and be prepared to take the examination on that day or you forfeit your right to take the examination at all. Attendance: Attendance is required at lectures but roll will not be taken. Weather Emergencies: We live in a cold and snowy climate. Many of us drive in to work/school every day. This creates the potential for problems with course attendance. For the record, you should note that MSUM s weather policies are not very forgiving for the commuter. Classes are rarely cancelled even in the harshest conditions. As a result, I am expected to be here to teach when the University deems it possible to have classes. Therefore, if the University is open, you can virtually guarantee (though it is not an absolute certainty) that I will be here for class. I understand that there are times when weather conditions will make it legitimately impossible or impractical for you to attend class. You must use your own judgment in these situations. I will never penalize a student for missing class due to weather related contingencies, including missing an examination due to weather. Your life and well-being are more important than this class. I trust you will not abuse the privilege. Special Accommodations: Students with disabilities who believe they may need an accommodation in this class are encouraged to contact Greg Toutges, Director of Disability Services at (Voice) or (MRS/TTY), Flora Frick 154 as soon as possible to ensure that accommodations are implemented in a timely fashion. Academic Honesty: Students are expected to conform with the requirements of the MSUM student Academic Honesty Policy as documented in the Student Handbook. Make-Up Work and Reasonable Accommodations: Generally, I intend to discourage the practice of make-up work or examinations. If, however, you have a documented family emergency or long term illness, I will accommodate in rescheduling an examination. In no circumstances, however, will I give an examination BEFORE a scheduled date. Reading Assignments: Cases should be prepared before the class in which they will be covered. You might wish to prepare a brief for each case, at least until you feel comfortable with the case method. You will follow the course far easier if you keep up to date. Introductions and other assignments can be read in large or small doses, but CASES ARE HARDER TO UNDERSTAND IF THEY ARE NOT ANALYZED BEFORE CLASS! All references to case names are those cases included in the Epstein and Walker casebook. You should read all the material both before and after noted cases to understand the context within which the given case is placed.

4 Introduction to the Course--August 25 Course policies, syllabus, etc. I. The U.S. Constitution--History/Foundations of American Constitutional Law (Aug 27 Sept. 1) Read: E/W, pp before or after class to review what was introduced. Videos: The US Supreme Court : A Brief History II. Institutional Powers and Constraints: The Branches of the Federal Government A. Judicial Power: Read Ch. 2, E/W (Sept 3, 8) Judicial Review: Marbury, Martin, Eakin Constraints on Judicial Power: Ex parte McCardle, Baker, Nixon, Flast B. Legislative Power: Read Ch. 3, E/W (Sept 10, 15) Internal Affairs: Powell, US Term Limits, Gravel Sources/Scope of Power: McCulloch, McGrain, Watkins, Barenblatt Other Powers--Inherent/Amendment Enforcement: Curtiss-Wright, Katzenbach C. Executive Power: Read Ch.4, E/W (Sep 17, 22) Execution of the Laws: In Re Neagle Domestic Powers: Clinton v. NY, Morrison, Myers, Humphrey's Executor Bush v. Gore, US v. Nixon, Mississippi, Fitzgerald, Clinton v. Jones, Ex parte Grossman, Murphy, Curtiss-Wright (review) D. Separation of Powers in Context: Read Ch. 5, E/W (Sept 24, 29) Domestic Power Conflicts: Mistretta, Chadha, Bowsher, War powers/emergencies: Prize Cases, Ex parte Milligan, Quirin, Korematsu, Youngstown, Dames&Moore, Hamdi Review for Exam 1/Catch up Day: October 1 EXAM 1 is Tuesday October 6. III. National versus State Government: Cooperation and Conflict A. Federalism: Read Ch. 6, E/W (Oct. 8, 13) Historical Development of Federal Power: McCulloch(review), Dred Scott, NY v. US, Printz Preemption: Holland, Crosby, Arizona v. US

5 B. Commerce: Read Ch. 7, E/W (Oct 15, 20, 22) Origins of Enumerated/Implied Federal Power over Commerce: Gibbons What is commerce? :E.C. Knight, Stafford, Champion, Dagenheart The New Deal Expansion: Schechter, NLRB, Darby, Wickard Is THAT commerce?: Heart of Atlanta Motel The Republican limits on commerce clause power: Garcia (and Usury), Lopez, Morrison, Gonzalez, Sebelius State Commerce: what s left to regulate?: Cooley, So. Pacific, Hunt, Maine, Granholm C. Contracts: A Liberty Interest?: Read Ch. 9, E/W (Oct 27, Oct. 29) Early Cases: Fletcher, Dartmouth Death of Contract: Charles River Bridge, Stone, Blaisdell Rehnquist s Revival: US Trust, Allied Structural Steel Review for Exam 2/Catch up Day: November 3 EXAM 2 is Thursday November 5. IV. Taxation, Substantive Due Process and the Takings Clause: A. Economic Substantive Due Process: Read Ch. 10, E/W (Nov. 10, 12) What is substantive due Process? : Slaughterhouse, Munn, Allgeyer Back and forth we go: Lochner, Muller, Adkins Depression/New Deal/Decline of Substantive Due Process: The Last Ride Of the Four Horsemen: Nebbia, West Coast Hotel, Williamson Modern Applications: BMW v. Gore; Caperton Brief Discussion of Substantive Due Process in Bodily Integrity Cases: Abortion, Right to Die B. Taxation: Read Ch. 8, E/W (Nov 17, 19) Taxing/Spending for the General Welfare: Butler, Seward Machine, Dole State Taxes: Michelin Tire, Complete Auto Transit, Quill, Oregon Waste Systems NOTE: NO CLASS Tuesday November 24 nor Thursday, November 26 (Thanksgiving)

6 C. Takings: A Property Interest!: Read Ch. 11, E/W (Dec 1, 3) What is a taking?: Causby, Penn Central, Nolan, Lucas Public Use: Berman, Hawaii Housing, Kelo Review for Exam 3/Catch up day: December 8. Exam 3 is the Final Examination which will be held at the time/place indicated in the Fall 2015 Final Examination Schedule. This is the third unit exam of the course and is NOT a comprehensive final examination. As of this writing, that exam is scheduled for Monday, December 14 at 9 a.m. in BR 263. THIS ANNOUNCEMENT DOES NOT ALLEVIATE STUDENTS FOR RESPONSBILITY IN ENSURING THAT THE EXAM IS ON THIS DATE/TIME. STUDENTS ARE SOLELY RESPONSIBLE FOR CHECKING THE AVAILABLE SCHEDULES AND ATTENDING THE FINAL EXAMINATION. ***Please Note: This syllabus is NOT an enforceable contract between student and professor. The professor reserves the right to alter this syllabus at any time in the semester either in writing or by in-class notification.