Constitutional Law
Government 311 Fall 2015
Location Ladd 206
Time 9:10-11:00am TR
Final Exam December 16 W, 1:30-4:30pm, Ladd 206
Instructor James Sieja
Email jsieja@skidmore.edu
Office Ladd 308
Office Hours 10am-12pm MWF, 1:30-6:30pm MW, and by appointment
Phone (518) 580-5247
Overview
The course title “Constitutional Law” is somewhat (not entirely, but somewhat) misleading. In
contrast to a traditional law school course, which focuses on “what the law is” through the recitation
of holdings in landmark cases, this course has three goals. First, you will learn “what the law is,”
primarily by reading cases closely to understand what the Supreme Court decided. The primary
topics for this course are the balances of power between 1) the three branches of government and
2) the states and national government. Second, you will become familiar with the historical
development of the law and how context can influence the Court’s behavior. For example, you
will discover how changing interpretations of the commerce clause track changes in American
society and the economy at large. Third, you will be able to discuss not just the Constitution and
constitutional law, but also the idea of constitutionalism. What does it mean to have a written
constitution? What is the proper role of the Supreme Court in American democracy? How do the
three branches of the national government, the states, and the people interact to produce what
seems to be a paradox: an ever-changing and contested constitutional settlement.
Textbook and course readings
The textbook for the class is
O’Brien, David M. 2014. Constitutional Law and Politics Volume 1: Struggles for Power and
Governmental Accountability, 9th Edition. New York: W.W. Norton. (abbreviated CLP below)
I will provide additional readings electronically via the course Blackboard site. Cases can be found
through the library’s electronic resources. (Lexis will become your friend this semester.) The
textbook contains edited versions of many cases that we will discuss, but it is best to find the full
versions, which contain the complete reasoning of the majority, concurring, and dissenting
opinion(s), through the library. There are simply no substitutes for the originals.
Course format
Because this is a small seminar course, my role is not to talk at you so that you. Instead, my role is
to facilitate discussion of the cases and controversies we will encounter over the course of the
1 semester. Coincidentally, you have the same role. It is imperative, then, that every member of the
class comes prepared (i.e., having read the cases and text carefully and critically) to discuss the
day’s topic. The success of the class depends on your dedication to preparation and engagement.
Ask questions. Argue. Challenge. Probe. Do all of these honestly (see below), and we will have a
successful semester.
Attendance and participation are mandatory. (Note: It is not possible to do well on the latter if you
do not do well on the former.) Please let me know before class if you must miss. There is no
acceptable number of unexcused absences. After one unexcused absence, each subsequent
unexcused absence will lower your final letter grade by a half-step (e.g., a B+ becomes a B at two
unexcused absences, a B- at three, etc.). Regardless of the reason for your absence, you are
responsible for all material covered in class that day .
Course requirements and grading
Midterm exam (20%), final exam (25%), attendance and participation (15%), hypothetical (10%),
and case briefs (30% - 6 @ 5% each).
Barring clerical error (e.g., I added up the points incorrectly or entered the incorrect number on
Blackboard), all grades are final. I am always willing to talk with you about exam and written
assignment grades and suggest ways to improve. But, I will not bargain over grades or points, nor
will there be extra credit opportunities.
I will employ a standard grade scale: A+ (100-97), A (97-93), A- (93-90), B+ (90-87), B (87-83), B(83-80), C+ (80-77), C (77-73), C- (73-70), D+ (70-67), D (67-60), F (below 60). I will not round
grades as a matter of course; however, your exceptional effort in one or more elements of the final
grade may be considered a plus factor if your grade is on the borderline. There is no curve in this
course, though I reserve the right to adjust grade cutoffs if necessary. The adjustments will only
work neutrally or in your favor, if applied.
Exams
We will have one midterm exam on November 3. The final will be comprehensive with an
emphasis on the last half of the course. The exams will have a combination of multiple choice,
short answer, and essay questions.
Hypothetical
For this assignment, you will use legal principles and cases covered in the course to analyze a
fictional case in six to eight pages. Imagine you are a lawyer for a client involved in a constitutional
case. You will need to prepare a document that explains to the court the important issues in the
case, the relevant precedents, and why your client should win. You should raise counter-arguments
to your position and address them forthrightly as well. The hypothetical will be assigned October
20 and be due a week later, in hard copy at the start of class.
Case briefs
Briefing cases is not only an essential skill for law school-bound students, but also an especially
useful learning tool and study aid. In the introductory section of the course, you will read a short
section of CLP on briefing cases. During each of the six sections with cases (II through VII under
2 “Topic and readings”), you are required to prepare a full brief on one case listed on the syllabus.
You must turn the brief in before we discuss the case in class. The cases for each class are set out
in the syllabus.
Expectations and technology policy
I expect this class, the readings, making an argument, and getting involved to be the thing you care
about most in the world during the 160 minutes we meet each week. I expect you to come to class
at least having read the material for the week, even if you haven’t fully understood it or have an
opinion on it yet. That’s why we have class – to work through those issues. But, understanding and
evaluation of the material will be difficult if you have not done the first part: reading them yourself.
I expect you to bring assigned reading material to class with you. Many of the readings are on the
course Blackboard site or accessible through the library’s databases. For this reason, if you do not
print out the readings, you should bring a laptop with which you can access them. Accessing
readings and note-taking are the only regularly authorized uses of an electronic device during class.
Please turn off all cell phones, etc., and during class, place them on the table in front of you. I
will silently assess penalties, which will negatively affect your attendance and participation grades, if
I suspect that you are not fully present in class at any point. As someone (the internet claims
Thomas Jefferson, but I’m dubious) once said, “If you’re here, be here.”
Disability accommodations
Please inform me during the first two weeks of classes if you need any accommodations in the
curriculum, instruction, or assessments of this course to enable you to participate fully.
Confidentiality of the shared information will be strictly maintained. We will work with Meg
Hegener, Coordinator of Student Access Services, if accommodations require such assistance.
Academic honesty
I expect everyone to conduct themselves with integrity and honesty in this class. There are two
facets to this expectation.
First, all of the work you do in this class will be your own. Don’t cheat. Don’t plagiarize. Don’t take
short cuts. If I catch you engaging in academic dishonesty, you will, at the very least, receive an F
for that portion of the course (e.g., if you plagiarize on one case brief, you will max out at 18% out
of 30%). That is the minimum penalty. It gets worse from there based on the intent and
egregiousness of the dishonesty. Again, don’t cheat.
Second, I expect everyone to be intellectually honest. This means listening attentively to other’s
comments and questions and responding appropriately. Some of the material in the class is
controversial (e.g., the proper way to interpret the Constitution), and an intellectually vibrant
community like Skidmore ought to entertain opinions on most any side of a controversy.
Moreover, a liberally educated person ought to be able to articulate fearlessly the “best case” for
any legitimate proposition. So, we will not resort to ad hominem attacks, shut-down-by-slogan, or
straw person arguments. (Ok, I might do the straw person argument sometimes, but only for
effect.) Believe in the rightness of your argument; be prepared to challenge both yourself and
others; and be open to changing your mind.
3 Topics and readings
Please note that the readings are subject to change. I will let you know throughout the
semester where we are in the schedule and where we are going.
I. Introduction and Foundations of Judicial Power (September 10, 15, & 17)
CLP, pp. 1107-1112
Kerr, “How to Read a Legal Opinion”
The Constitution and its Amendments (pp.1-21 in CLP)
Hamilton, The Federalist Nos. 78 & 81
Brutus, The Anti-Federalist Papers, Nos. 11-13
McCloskey, The American Supreme Court, Chapters 1 & 2
CLP, pp. 68-106
II. The Judicial Power and Its Restraints (September 22, 24, & 29, October 1)
Judicial Review
CLP, pp. 23-67
Marbury v. Madison; Eakin v. Raub; Cooper v. Aaron
Restraints
CLP, Chapter 2
Sheldon v. Sill; Ex Parte McCardle
Frothingham v. Mellon; Flast v. Cohen; Lujan v. Defenders of Wildlife
Luther v. Borden; Baker v. Carr; Nixon v. United States
III. Congressional Powers (October 6, 8, 13, 15, & 20)
Non-legislative Powers
CLP, Chapter 5
Powell v. McCormack; U.S. Term Limits, Inc. v. Thornton
Legislative Powers: Commerce Clause, Taxing, and Spending
CLP, Chapter 6
McCloskey, The American Supreme Court, Chapters 5-6
Gillman, The Constitution Besieged, Introduction and Afterword
McCulloch v. Maryland; Gibbons v. Ogden; United States v. E.C. Knight; Hammer v.
Dagenhart; Schechter Poultry v. United States
NLRB v. Jones & Laughlin Steel; Wickard v. Filburn; Heart of Atlanta Motel v. United
States/Katzenbach v. McClung
United States v. Lopez; United States v. Morrison; Gonzalez v. Raich; NFIB v. Sebelius
Pollock v. Farmer’s Loan & Trust; McCray v. United States; Bailey v. Drexel Furniture;
Steward Machine Co. v. Davis; South Dakota v. Dole; NFIB v. Sebelius
Hypothetical assigned October 20. Due in class October 27.
IV. The Domestic Presidency (October 22, 27, & 29)
CLP, Chapter 4
In re Neagle; Youngstown Sheet and Tube Co. v. Sawyer
Clinton v. New York; Myers v. United States; Humphrey’s Executor v. United States
Morrison v. Olson; Bowsher v. Synar
Midterm Exam 1: In class, November 3
4 V. Executive Power in War and Foreign Affairs (November 5, 10, & 12)
CLP, Chapter 3
Schmitt, “Washington’s Proclamation of Neutrality”
War Powers Resolution
Fisher, “Judicial Review of the War Power”
United States v. Curtiss-Wright Co.; Dames & Moore v. Regan; Missouri v. Holland,
United States v. Pink; Medellin v. Texas
Ex parte Milligan; Korematsu v. United States; Hamdi v. Rumsfeld; Rasul v. Bush
VI. Federalism (November 17, 19, & 24)
CLP, Chapter 7
Cooley v. Board of Wardens; Southern Pacific Co. v. Arizona; Bibb v. Navajo Freight
Lines; Maine v. Taylor; Pennsylvania v. Nelson
Garcia v. SAMTA; New York v. United States; Printz v. United States; Seminole Tribe
of Florida v. Florida; Alden v. Maine; NDHR v. Hibbs
Martin v. Hunter’s Lessee; Cooper v. Aaron; Younger v. Harris; Stone v. Powell; U.S.
v. Windsor
VII. Back to the Legislature: Economic Rights (November 17, 19, & 24)
CLP, Chapter 9
Fletcher v. Peck; Dartmouth College v. Woodward; Charles River Bridge Co. v.
Warren Bridge Co.; HBLA v. Blaisdell; United States Trust Company v. New
Jersey
The Slaughterhouse Cases; Munn v. Illinois; Lochner v. New York; Muller v. Oregon;
West Coast Hotel v. Parrish
Kelo v. New London; Hawaii Housing Authority v. Midkiff; Lucas v. South Carolina
Coastal Council
VIII. Judicial Power Revisited (December 8 & 10)
Dahl, Robert A. 1957. “Decision-Making in a Democracy: The Supreme Court as a
National Policy-Maker” Journal of Public Law 6: 279-295
Whittington, Political Foundations of Judicial Supremacy, Chapters 5 & 6
Bickel, The Least Dangerous Branch, Chapter 4
Friedman, The Will of the People, “Conclusion: What History Teaches”
Tushnet, Taking the Constitution Away from the Courts, Chapters 1, 6, & 7
Final Exam: December 16, 1:30-4:30pm (comprehensive, with emphasis on the last third
of the course)
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