POLITICAL SCIENCE 347 A
American Constitutional Law: Institutional Powers and Constraints
Spring 2015 MW 1400-1515
Edward V. Heck Schedule Number 22563 email: heck@mail.sdsu.edu
Office: Nasatir Hall 313
The U.S. Constitution grants broad powers to government (“The Congress shall have power to lay and collect taxes, Art. I, Sect.8, para. 1) and also imposes limits on what government may do
(“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ,” First Amendment). Moreover, many of the Constitution’s most important provisions are phrased in language that is strikingly open-ended. Among the clearest examples are words and phrases such as “commerce . . . among the several states,” “necessary and proper,” “cruel and unusual punishments,” “liberty,” “due process,” and “equal protection.” American courts have claimed and frequently exercised the authority to interpret these phrases and other provisions of the
Constitution.
More often than not, the Court’s constitutional decisions involving hot button political issues are linked to partisan or ideological divisions found in Congress and the nation. For example, the
Supreme Court under Chief Justice John G. Roberts, Jr., is currently composed of five Republicans and four Democrats. In many cases the contemporary Court has split along partisan lines, with the
Republican majority interpreting the Constitution in ways that reflect the platform and programs of the national Republican Party. Such cases include decisions expanding First Amendment protection for campaign spending and contributions, a decision allowing prayer at town meetings, and many criminal cases. But there are also important cases that suggest that the Court today may be less polarized along partisan lines than the two houses of Congress. In 2012, Chief Justice Roberts voted with the Court’s four Democrats to rule that a key provision of President Obama’s most controversial legislative achievement (the Compassionate Care Act or “Obama care”) was constitutional. And in
2013, Justice Anthony Kennedy (a relatively progressive Republican from California) joined the
Democrats to support the cause of “gay rights” by striking down the federal Defense of Marriage Act
(DOMA) by a vote of 5-4.
These and other controversial decisions of recent years illustrate once again an important reality that is a basic theme of this course – the Supreme Court is a political institution. One of the major goals of American Constitutional Law at San Diego State is to ensure that students who complete this course will be among those citizens who can participate in political debate about the
Supreme Court with a sophisticated understanding of the constitutional issues involved and the nature of the ongoing conflicts among the justices. Although the disagreements between liberal and conservative wings of the Court have been particularly sharp in recent decades, we will learn that ideological or partisan factors have been reflected in Court votes and decisions for more than 200 years. Because these voting patterns are almost always rooted in presidential politics, we will consider presidential appointments to the Court throughout American political history. On a more theoretical level, we will also discuss how Supreme Court decisions illustrate and reflect
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fundamental principles of the U.S. Constitution, including the enduring conflict between majority rule and competing constitutional values such as federalism, checks and balances, and individual rights. Those who survive and prosper in this course will realize that the Supreme Court has long been central to political debates in this country and will learn to put current constitutional conflicts in historical perspective.
“Con Law” is traditionally designed to be one of the most challenging courses in the political science curriculum. Yet, it remains popular with students because it mixes law, history, and politics in a fascinating blend. As students of political science, we will stress the political aspects of the subject matter rather than the law itself. Supreme Court opinions are legal documents, and historical perspective is essential for an understanding of constitutional development, but our focus in this course will always be on the Court as a political institution. The public attention focused on
Supreme Court nominees in recent decades clearly reflects the reality that the individuals who make up the Court are important. During the semester we will read and discuss the opinions of a number of justices (from John Marshall to members of the current Court) who have had a significant impact on the development of constitutional doctrine. Please keep in mind that an exam or quiz question which asks you to name the justice who wrote a particular opinion is not an exercise in trivia, but a means of learning to appreciate the reality that the Supreme Court is a political institution in which individuals make a difference. Another important issue that will concern us throughout the semester is the question of how the Supreme Court interprets vague provisions of a Constitution that speaks primarily in terms of broad general principles rather than specific and definite rules of law. Toward the end of the semester, we will begin to lay out the parameters of a theoretical debate about the conflict between deference to democratically-elected legislatures and “judicial activism” in support of fundamental constitutional values.
These and other themes will be developed through close examination of “quarrels that have shaped the Constitution,” that is, major cases from 1803 to the present in which the Court has interpreted such important constitutional provisions as the commerce clause, the necessary and proper clause, Article III, the Tenth Amendment, the due process clause, and the equal protection clause. We will emphasize cases decided during those periods of constitutional history that have had the greatest impact on modern constitutional theory and practice, particularly the formative era under
Chief Justice Marshall and the period of the New Deal crisis and its aftermath, including the pivotal
“switch in time” of 1937. Specific topics to be considered include the nature and scope of judicial review, federalism, the power of government to regulate the economy, civil rights, and presidential power. Many of the cases we will read this semester directly address the fundamental tension between an expansive view of the scope of federal power under the commerce clause (as reflected, for example, in the Affordable Care Act) and the belief that the Tenth Amendment should be interpreted as limiting national power in order to protect the autonomy and independence of the states. Also of great importance for those who hope to participate intelligently in ongoing debates on such controversial topics as abortion rights or gay marriage is an understanding of the states’ police power. (The police power may be defined as the authority of state governments to legislate to promote the public health, safety, and welfare .) Those who understand the basic structure of the
Constitution as a document that grants power to government and simultaneously limits that power
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will be able to develop the perspective necessary for sophisticated analysis of the conflicts between governmental power and individual rights that have given rise to the great civil liberties cases of recent decades.
Although I encourage students who complete this course to enroll in other public law courses in the political science department, this semester’s 347A class has been designed as a self-contained three-unit course providing historical perspective on how the justices have resolved controversial constitutional issues over a period of more than 200 years.
STUDENT LEARNING OBJECTIVES
At the end of the semester, you will be able to:
1) discuss why the Supreme Court is a political institution, using examples from the era of Chief Justice John Marshall, the period of the New Deal crisis, and the contemporary court shaped by the appointments of presidents from Reagan to Obama.
2) explain and illustrate the proposition that the Constitution is a document that speaks primarily in terms of broad general principles.
3) read Supreme Court opinions with understanding and identify the political implications of specific Court decisions.
4) explain how individual justices and presidents have contributed to the formulation of public policy by the Supreme Court.
5) analyze and critique major opinions of Supreme Court justices in light of your own developing theories of constitutional interpretation.
In addition to these specific goals, it should be understood that the overarching goal of the course is to help each student develop the analytical and communications skills that should characterize all educated persons. These skills in reading, thinking, and writing are essential for all students, but particularly for those who may decide to attend law school in the future. Exams and quizzes, as well as the ongoing activities of reading and discussing assigned cases, are designed as means to the end of attaining these course objectives.
RECURRING THEMES
As we read and discuss cases this semester, several important themes will come up again and again. In the following paragraphs, I shall introduce some of the major themes that will guide our discussions throughout the semester. Please read this material carefully and refer back to it before exams and at other appropriate times.
1. THE SUPREME COURT IS A POLITICAL INSTITUTION. This is the fundamental premise with which this course begins and ends. For political scientists interested in the Court there is no more fundamental proposition. Lawrence Baum has written, “as a part of government, courts are political institutions by definition” (Baum, The Supreme Court, 2004: p. 2). Nonetheless, I have
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observed that some students (and many lawyers) resist this basic truth. Perhaps discussion of this proposition can be clarified by making the point that there are at least three different ways in which the Court is political: a. The Supreme Court is a major policy maker. By majority vote, the Court formulates proposed solutions to policy problems embodied in the cases it hears and decides. b. The Court’s decisions are reached through processes that involve conflict and cooperation among the justices (internal politics). c. The Court’s decisions are closely linked (primarily through the appointment process) with what is going on in the rest of the political system (external politics).
We will touch on all three of these manifestations of politics in the Supreme Court this semester. The opinions we read represent only a small sample of the many cases in which the justices have acted as policy makers. In reading these cases, we will learn that ideological disputes and personality clashes among the justices (manifestations of internal politics) are nothing new.
Rather, we shall see that such internal political battles have been waged from the early days of the
Court to the present. Because American presidents from George Washington to Barack Obama have sought to influence the Court’s decisions by selecting justices who shared the appointing president’s views on salient political and social issues of the day, the relationship between justices and presidents is central to understanding the nature of the Court’s external politics. For further development of this point, see recurring theme #4, below.
2. “LET’S EVERYBODY LITIGATE.” Although courts are political institutions, they differ from legislatures and other policy-making institutions in significant ways. Courts do not make policy on their own initiative, but must await the filing of a lawsuit by a litigant who asks a court to resolve a legal dispute with another party. This limitation on the power of courts should not be overrated, however. Scholars are in general agreement that modern America is a litigious society in which a wide variety of quarrels are taken to court. Our discussion this semester of various quarrels that have shaped the Constitution should help demonstrate that the attitude of “Let’s Everybody Litigate”
(Maurice Rosenberg, “Let’s Everybody Litigate?”, Texas Law Review, Vol. 50 (Nov. 1972), p.
1349) has long been part of the American way of resolving political disputes. In reality, the tendency of Americans to take their disputes to court and to press those cases involving important constitutional questions “all the way to the Supreme Court” is nothing new.
3. THE CONSTITUTION SPEAKS PRIMARILY IN TERMS OF GENERAL PRINCIPLES
RATHER THAN SPECIFIC AND DEFINITE RULES OF LAW. The most important provisions of the Constitution are those that leave the greatest latitude for interpretation. To the Court has fallen the task of giving concrete meaning to the “majestic generalities” of such terms as interstate commerce, due process, equal protection of the laws, liberty, unreasonable searches and seizures, freedom of speech, and establishment of religion (see West Virginia Board of Education v. Barnette in Mason and Stephenson, American Constitutional Law , p. 547). Given the open-textured character
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of these and other important constitutional provisions, it seems inevitable that the justices would disagree about their meaning. Thus, it is important to consider how the justices should proceed as they seek to determine the meaning of the Constitution and apply its principles to social, economic, and political problems raised in the cases brought before the Court.
Because the constitutional text provides little in the way of specific guidance, debates about the “intent of the framers” have played a prominent part in constitutional history from the time of
John Marshall to the present. Although the rhetoric accompanying this debate is often inflated and misleading, some questions about the appropriate weight to be given to “original intent” are relevant and should be given serious thought by students of constitutional interpretation. For example, should the justices seek to determine the specific intent of the Constitution’s drafters? Or is it more consistent with the nature of the Constitution to apply the document’s “majestic generalities” in ways not explicitly envisioned by the framers? This issue is at the heart of an “unstaged debate” between
Judge Robert H. Bork and Professor Lawrence Tribe (Mason and Stephenson, pp. 77-79).
4. PRESIDENTS SEEK TO INFLUENCE JUDICIAL DECISIONS THROUGH EXERCISE OF
THE APPOINTMENT POWER. Careful study of events of recent decades should help to demonstrate the truth of this proposition. Like most of his predecessors in the White House,
President Ronald Reagan took office with the goal of shaping the Supreme Court “in his own image.” Reagan made his mark on the Supreme Court early in his first term with the appointment of
Justice Sandra Day O’Connor as “The Brethren’s First Sister” (Time, July 20, 1981). During his second term, President Reagan saw the Senate reject his nomination of Judge Bork, but still took major steps toward the creation of a conservative court with the appointments of William Rehnquist as Chief Justice and Antonin Scalia as an associate justice. At least two of the four justices appointed by presidents named Bush (Justices Thomas and Alito) have been stalwart supporters of furthering the Reagan Revolution through judicial decisions. On the other hand, all four of the justices appointed by Presidents Clinton and Obama – including the three women currently serving on the Court – are lawyers and judges who reflect the generally liberal views of the contemporary
Democratic Party.
5. SUPREME COURT JUSTICES HAVE ALWAYS BEEN JUDICIAL ACTIVISTS. From the time of John Marshall to the present, Supreme Court justices have used the power of judicial review aggressively in pursuit of constitutional values and policy goals favored by members of the Court. In order to understand the implications of this proposition, it is necessary to come to grips with discussions of the meaning of judicial activism and debates about how it might be justified. Why should an unelected body that has often been composed of “nine old men” be permitted to second guess the policy decisions of duly elected legislative and executive officials? Can judicial activism be justified in certain situations, but not in others? (For an overview of Justice Harlan Fiske Stone’s answer to this question see the discussion of the Carolene Products case in the Mason and
Stephenson casebook, pp. 311-313). How, in short, would you resolve the inherent tension between the democratic principle of deference to the legislature and judicial activism in support of individual liberties and other fundamental constitutional values? These are among the kinds of questions that must be addressed by any student whose goals include the development of his/her own theory of constitutional interpretation.
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One source of confusion in this debate is lack of agreement about definitions. Those who write and speak about the Court apply the term, “judicial activism,” in many different and often inconsistent ways. Unfortunately, many scholars and almost all popular commentators use “activist” as a rhetorical weapon against their political opponents (usually without specifying its meaning).
Serious scholarly studies, however, point toward a neutral and meaningful definition. According to
Professor Louis Michael Seidman, “judicial activists favor relatively uninhibited judicial intervention to enforce the norms that judges find in the Constitution,” while “advocates of restraint . . . counsel against judicial interference with political outcomes” (Seidman, “Romer’s Radicalism,” Supreme
Court Review 1996, p. 87). Taking this comment as a point of departure, I propose to define judicial activism (at least for purposes of this course) as aggressive use of judicial power for the purpose of furthering fundamental constitutional values such as limited government, federalism, and checks and balances.
Given this definition, please note that “activist” is NOT necessarily a term of derision. Rather, activist justices may be seen as those most committed to using judicial power to preserve and enforce fundamental constitutional principles.
REQUIRED BOOKS
The two required books for this course are:
Alpheus Thomas Mason and D. Grier Stephenson, Jr., American Constitutional Law:
Introductory Essays and Selected Cases (16 th ed., 2012).
John A. Garraty, ed., Quarrels That Have Shaped the Constitution (Revised and expanded edition, 1987).
Both books should be purchased or rented and put to use immediately. Other required readings will generally be made available through the “Blackboard” site for this class or as in-class handouts. I also encourage you to check out the web site created by the publisher specifically for users of our casebook: www/prenhall.com/mason or americanconlaw.weebly.com
.
I have also included on the syllabus under “supplementary resources” a few cases and other background materials that will be discussed in class. Supreme Court opinions, the most important primary source materials for the study of constitutional law, are readily accessible via a variety of
Internet sites, including the official Supreme Court website and the Findlaw site that includes recent
Supreme Court opinions ( www.findlaw.com/casecode/supreme.html
). Students who are thinking seriously of attending law school should take the opportunity to familiarize themselves with traditional library versions of Court decisions, most notably the official U.S. Reports (shelved in the government documents room of the library).
COURSE REQUIREMENTS AND GRADING
The assignments listed below are intended to provide each student with a variety of
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opportunities to demonstrate achievement of the course objectives. Specific requirements are as follows:
1. “Progress” Quizzes 40 points
2. Contributions to Class Discussion 10 points
3. Required Midterm Exam 55 points
4. Second Midterm Exam or Course Project 60 points
5. Comprehensive Final Exam 85 points
TOTAL 250 points
Course grades will be determined by the cumulative point total for these assignments. The range for each grade is as follows:
A = 229-250 points
A- = 225-228 points
B+ = 220-224 points
B = 204-219 points
B- = 200-203 points
C+ = 195-199 points
C = 179-194 points
C- = 175-178 points
D = 150-174 points
F = below 150 points
Academic success in this course is absolutely dependent on careful preparation and regular class attendance. There is little doubt that students in a con law class must keep up with the reading assignments and attend class faithfully in order to develop their skills in reading Supreme Court opinions and related materials with understanding. With exams and quizzes scheduled throughout the semester, the highest grades will go to those whose work is consistently outstanding. Students who do poorly on early quizzes and the required midterm exam (often those who make the mistake of thinking that this course is no more demanding than Political Science 102) can still demonstrate their ability to read and understand Supreme Court decisions on the second midterm and the final exam. However, those who fall behind in their work and/or miss class frequently are prime candidates to “crash and burn” and finish the semester with grades of D or F.
Class attendance and active participation are also important because this class is designed as an ongoing conversation between students and the instructor about the assigned cases and related topics. I plan to begin many class meetings (particularly when no quiz is scheduled) with a “four questions” exercise in which specific individuals will be asked to answer questions about assigned readings and the cases under discussion. To encourage and reward effective participation in this classroom discourse, a small percentage of your course grade will be based on contributions to discussion and other in-class activities. Each student in the class will receive a score between “0” and “10” based on his/her overall contributions throughout the semester. When it comes to assessing the value of individual contributions to class discussion, quality will be weighed more heavily than
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quantity. Those who answer or ask questions and participate in discussion on a regular basis can expect high participation scores, but no “extra credit” is available under this heading.
“Progress Quizzes” are also a vital part of the overall testing and feedback program for this class. Specifically, there will be seven progress quizzes this semester, each worth eight (8) points.
These quizzes are not nearly as comprehensive as exams, but are designed to check your progress in mastering reading assignments and topics discussed in class over a period of approximately two weeks. These short quizzes will normally include multiple choice, true/false, and other types of objective questions. Specific dates are indicated under the weekly reading assignments. More often than not, these quizzes will be given orally at the beginning of class, with the quiz questions used to organize the discussion that follows. Some progress quizzes, however, may be given at the end of class in the form of a written quiz or other in-class exercise. The two lowest scores on the seven progress quizzes will be dropped, and course grades will be calculated on the basis of each student’s five highest scores. But note, any student who is not present when a progress quiz is given will automatically receive a score of "0" for that quiz. No makeup quizzes will be given. Because it is not possible to provide individualized makeup quizzes, students are expected to arrange their lives so they can be in class on a regular basis.
The required midterm exam will be given in class on Wednesday, February 25. This exam requires students to know the materials covered during the first six weeks of the semester thoroughly and to use the available time efficiently. The second midterm exam is scheduled for Wednesday,
April 22, but students (particularly those who do well on the first exam and plan to enroll in Political
Science 347B in the future) may choose to complete a “course project” paper instead of this exam.
Please note that the final exam will be given at 1 p.m. on Monday, May 11. Students are required to take these exams at the scheduled times. Those who are unable to take an exam as scheduled because of serious illness or other compelling reason must leave an e-mail message for the instructor
( heck@mail.sdsu.edu
) before the exam begins in order to be eligible to take a makeup. University rules specify that “no final examination shall be given to individual students before the regular time”
(see Online Class Schedule ). Thus, you are expected to be available to take the final exam on the scheduled date.
The course project will be an optional alternative to the second midterm exam for selected students, particularly those who plan to enroll in Political Science 347B in a future semester. The project will involve a multi-part written analysis of an important Supreme Court decision of the
Twentieth Century, most likely the school prayer case of Abington School District v. Schempp
(1963). To be eligible to substitute the course project for the second midterm exam, you are normally expected to earn at least 20 points on the first three progress quizzes and a grade of B or better on the first midterm.
All quizzes, exams, and papers in this course must be the individual work of the student in whose name the work is submitted. A University is a community of scholars dependent on mutual trust, so cheating, plagiarism, and other forms of academic dishonesty cannot be tolerated. There is no place in this course for students who are unwilling to adhere to the norms of academic honesty that support the integrity of SDSU's degrees
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The instructor’s office is in Nasatir Hall, Room 113. Regularly scheduled office hours this semester are from 3:30 to 4:30 p.m. on Mondays and 12:30-1:30 on Wednesdays. If these times are not convenient, please feel free to request an appointment at a mutually convenient time. The best way to contact the instructor is by email ( heck@mail.sdsu.edu
).
READING ASSIGNMENTS AND CLASS PROCEDURE
The course schedule and assigned readings section of this syllabus lists the topics to be covered and assigned readings for each week of the semester. Each week’s assignment should be divided into two roughly equal parts with the first half completed before Monday’s class and the second half for Wednesday’s meeting. Because the required readings almost always provide the point of departure for lectures and class discussion, advance preparation for each class is vital. Even if no specific assignment is given, it is your responsibility to review your notes and read the appropriate cases and other assignments listed on the syllabus. It is important that each member of the class be prepared to participate in the “four questions” exercise on a regular basis. In addition, I would encourage you to formulate questions or comments on the cases as you read and to come to class prepared to share your observations with the class. Many of the assignments (particularly the cases assigned during the first half of the semester) simply must be read at least twice to attain the degree of mastery expected on exams. Discussion of interesting or difficult topics may be carried over from one week to the next.
There are many approaches to reading judicial opinions. Those of you who attend law school in the future will find that you are expected to “brief” assigned cases before attending class. In order to give everyone in the class an opportunity to practice this technique, you will be asked to prepare a brief of one assigned case early in the semester. (This brief will not be graded, but will likely be the basis for a “four questions” exercise and/or questions on a progress quiz). Students who find briefing a useful note-taking technique may want to brief all assigned cases. What I recommend, however, is that you take the time to answer the numbered questions below when you first read each assigned case:
1. Who sued whom? Or was the case originally a criminal prosecution? In what court did the case begin? Was it a state court or a federal court?
2. What was the background of the quarrel that led the litigants to go to court? What statutes or other legal provisions appear to be relevant to the dispute?
3. Which litigant claims that a statute (or government action) is unconstitutional? What are the key provisions of the challenged statute? Is it a federal law or a state law?
4. What specific constitutional provisions are the basis for the challenge to the statute? If there are multiple claims, which is most important? Which of the “famous five” fundamental principles is most relevant to this particular claim that a law or government action violates the Constitution?
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5. Which litigant defends the constitutionality of the challenged statute? Is the litigant who claims that the statute is valid a unit of government or a government official? What constitutional provisions or principles are invoked in support of the challenged law?
6. Which litigant won in the lower courts?
7. Who was Chief Justice when the case was decided? Which justice wrote the majority opinion? Who were other important members of the Court at the time? (See Mason and
Stephenson, pp. 686-688).
8. What presidents appointed these justices? (See Mason and Stephenson, pp. 689-692).
***9. Who won in the Supreme Court? Was a statute declared unconstitutional? What constitutional provision[s] is [are] the basis for the decision? What reasons did the justices supporting the majority opinion offer in support of their decision?
10. (If there are concurring or dissenting opinions) What are the bases of disagreement within the Court? Who do you think has the best of the argument? How would you have voted if you had been a member of the Court? Why?
11. What is the long-range significance of the case? (How does it relate to other cases dealing with similar issues?)
Please note: questions similar to those listed above are very likely to be asked as part of the
“four questions” exercise at the beginning of class and on progress quizzes. While I believe that writing brief answers to these questions is the best way to make sure that you are prepared for class discussion, in preparing for exams I recommend a somewhat more focused approach of using note cards to record brief summaries of key points about each assigned case. As students of political science, you should keep in mind that we are interested not only in the Court’s decision and reasoning, but also in internal debates and the socio-political setting of each case.
.
It is for this reason that dissenting and concurring opinions are particularly important for students in this course. In these separate opinions, the justices not only spell out their disagreements, but also debate different approaches to constitutional interpretation. When reading cases in which two or more opinions are written, you should decide which position comes closest to your own views. By the end of the semester each student should have a good understanding of the basic positions taken by some of the Court’s most important justices and should have begun the process of developing his/her own constitutional philosophy.
The benefits to be derived from this course are largely dependent on your own efforts.
Through the years I have learned that the success of a constitutional law class is closely related to the quantity and quality of student involvement. I strongly urge you to ask questions and volunteer your own views on topics under discussion. It does little good if you talk just to hear the sound of your
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own voice, but if you have something worthwhile to say or can pose a meaningful question, the entire class is likely to benefit from your contribution.
Regular class attendance is essential for those who seek a satisfying educational experience in this course. I am aware that San Diego State students often feel that they have better things to do than attend class. I disagree and offer the alternative view that the act of signing up for this course should constitute a personal commitment to be in class at 2 p.m. every Monday and Wednesday until the end of the semester. I am quite certain that there is no justification for missing class that I have not heard during my 40 years as a university faculty member. Few of these excuses strike me as compelling. Moreover, it is unequivocally clear that students who earn the highest scores in constitutional law courses are invariably among those who have attended class most faithfully. In short, be here!! It is my intention to begin class promptly at 2 p.m., so please make a concerted effort to arrive on time. If, on some rare occasion, you must leave before class is over, I expect you to let me know about your plans before class begins and to sit near the door.
You should plan to bring the Mason and Stephenson textbook (and when appropriate the
Garraty book as well) to each meeting of the class, as lectures and discussions will frequently feature close reading of specific passages in assigned cases.
COURSE SCHEDULE AND ASSIGNED READINGS
FIRST WEEK (Jan. 21) – Powers and Constraints: Introduction to Constitutional Law
Required Reading:
U.S. Constitution, Article I, Section 8, Amendments 1-10 and 14, in Alpheus T. Mason and
D. Grier Stephenson, Jr., American Constitutional Law: Introductory Essays and
Selected Cases, 16th edition (Mason), pp. 676-677, 680-681, and 682.
Supplementary Resources
District of Columbia v. Heller (2008 ) , Mason pp. 374-378.
Citizens United v. Federal Election Commission (2010), Mason, pp. 215-219.
National Federation of Independent Business v. Sebelius (2012). For full opinions in all recent cases and other valuable material about the Court, see the Supreme Court’s official web site ( www.supremecourt.gov
).
United States v. Windsor (2013)
SECOND WEEK (Jan. 26-28) – Quarrels That Have Shaped the Constitution
The Many Meanings of “Liberty”
Required Readings:
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U.S. Constitution, Amendments 6 and 14 (Section 1) (review), in Mason, pp. 681 and 682.
Anthony Lewis, “The Case of the Florida Drifter,” in John A. Garraty, Quarrels That
Have Shaped the Constitution, (1987), pp. 334-350.
Gideon v. Wainwright, Mason, pp. 434-436.
Table 1 and Table 2 in Mason, pp. 686-692 and pp. 706-712 (skim).
Roe v. Wade (1973), Mason, pp. 568-571.
Mason, pp. 24-39.
Progress Quiz #1 – Wedneday, January 28
(Please Remember: Your two lowest scores on the seven progress quizzes are dropped, but there are NO MAKEUPS!)
Supplementary Resources:
Powell v. Alabama, 287 U.S. 45 (1932), in Mason, pp. 432-434.
Betts v. Brady, 366 U.S. 455 (1942).
McDonald v. City of Chicago (2010), Mason, pp. 378-381.
Planned Parenthood v. Casey (1992), in Mason, pp. 571-576.
Gonzales v. Carhart (2007), in Mason, pp. 576-580.
Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).
Lawrence v. Texas, 539 U.S. 558 (2003), Mason, pp. 584-589.
THIRD WEEK (Feb. 2-4) – Presidents and Justices: From George Washington to Barack Obama
Taking the Constitution Seriously: The “Famous Five” Fundamental Principles
Required Readings:
Mason, pp. 1-14.
“Failed Supreme Court Nominations, 1789-2006” (“Blackboard” or in-class handout).
Washington v. Glucksberg, Mason, pp. 581-584.
Mason, pp. 14-21.
National Federation of Independent Business v. Sibelius (2012) – the tax issue (Blackboard).
POL S 347A Syllabus, “Recurring Themes,” supra, pp. 3-6.
Mason, pp. 41-55.
U.S. Constitution, in Mason, pp. 675-685. Read carefully (or review) the Preamble (p. 675),
Article I, Section 8 (pp. 676-677), Article III (p. 679), the Bill of Rights
(Amendments I-IX) and the Tenth Amendment (pp. 680-681), and the Fourteenth
Amendment (p. 682). Skim the rest of the document, pausing for a closer look at
Article I (pp. 675-677), Article II (pp. 678-679), the Supremacy Clause (Art. VI, para.
2, p. 680), and the 13 th , 15 th , 17 th , and 19 th Amendments (pp. 681-683).
Letter written during Constitutional Convention, “George Washington to Alexander
Hamilton,” July 10, 1787 (“Blackboard” or in-class handout).
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Jefferson-Madison correspondence and Madison, “Speech Placing the Proposed Bill of
Rights Amendments before the House of Representatives,” in Mason, pp. 366-368.
“Unstaged Debate of 1986: Judge Bork vs. Professor Tribe,” Mason, pp. 77-79.
Supplementary Resources:
Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court
Appointments from Washington to Bush II (2008).
FOURTH WEEK (Feb. 9-11) – John Marshall and the Foundations of Judicial Review: Marbury v.
Madison
Marshall and the Foundations of National Power (1803-1835)
Progress Quiz #2 – Monday, Feb. 9
Required Readings:
Alexander Hamilton, Federalist 78, in Mason, pp. 59-60.
John A. Garraty, “The Case of the Missing Commissions,” in Garraty, Quarrels, pp. 6-19.
Marbury v. Madison, in Mason, pp. 60-64.
Bray Hammond, “The Bank Cases,” in Garraty, Quarrels, pp. 36-55.
McCulloch v. Maryland, Mason, pp. 149-152 (through paragraph beginning, “We admit
...”) (for now, read only the first part of the opinion in which Chief Justice Marshall lays out his argument about the constitutionality of the act of Congress chartering the
Second Bank of the United States).
Gibbons v. Ogden, Mason, pp. 240-242 (through paragraph beginning, “We are are now arrived. . .”) (for now, read only the first part of the opinion in which Marshall develops his influential argument that the Coasting Act of 1793 is constitutional).
Supplementary Resources:
Edward J. Larson, A Magnificent Catastrophe (Free Press, 2007).
FIFTH WEEK (Feb. 16-18) – Marshall and the Federalist Approach to the Constitution
Jacksonian Democracy and the Taney Court (1836-1864)
Required Readings:
Mason, pp. 133-139.
McCulloch v. Maryland, Mason, pp. 149-154 (now read entire opinion).
George Dangerfield, “The Steamboat Case,” in Garraty, Quarrels, pp. 56-69.
Gibbons v. Ogden, Mason, pp. 240-244 (now read Marshall’s entire opinion and concurring opinion of Justice Johnson.
 13 

U.S. Constitution, Article I, Section 10, paragraph 1, in Mason, p. 677
Mason, pp. 300-304.
Richard N. Current, “The Dartmouth College Case,” in Garraty, Quarrels, pp. 20-35.
Dartmouth College v. Woodward, Mason, pp. 321-324.
Mason, pp. 139-140 and 304-305.
Henry F. Graff, “The Charles River Bridge Case,” in Garraty, Quarrels, pp. 70-85.
Charles River Bridge v. Warren Bridge, Mason, pp. 324-326.
Progress Quiz #3 – Wednesday, Feb. 18
Supplementary Resources:
Cooley v. Board of Wardens (1851), Mason, pp. 244-246.
Southern Pacific v. Arizona (1945), Mason, pp. 246-249.
Granholm v. Heald, 544 U.S. 460 (2005), Mason, pp. 251-256.
SIXTH WEEK (Feb. 23-25) – The Taney Court and Slavery
Required Readings:
U.S. Constitution, Article III, Section 2, para. 1 (Mason, p. 679) and Article IV, Section 3, para. 2 (Mason, p. 680).
Don E. Fehrenbacher, “The Dred Scott Case,” in Garraty, Quarrels, pp. 86-99.
Scott v. Sandford, Mason, pp. 67-70.
***REQUIRED MIDTERM EXAM – Wednesday, Feb. 25***
SEVENTH WEEK (March 2-4) –The Civil War Amendments: Deferential Justices Interpret the
14 th
Amendment (1865-1888)
Laissez-Faire and Chief Justice Fuller: Interstate Commerce and a New View of “Liberty”
(1888-1910)
Required Readings:
U.S. Constitution, Amendments 13, 14, and 15, Mason, pp. 681-682.
Mason, pp. 305-307.
Slaughterhouse Cases (
Butchers’ Benevolent Association
v. Crescent City Livestock
Landing and Slaughter-House Co.
), Mason, pp. 329-334.
C. Peter Magrath, “The Case of the Unscrupulous Warehouseman,” in Garraty, Quarrels, pp.
119-138.
Munn v. Illinois, Mason, pp. 334-337.
Mason, pp. 228-230.
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United States v. E.C. Knight Co., Mason, pp. 256-258.
Champion v. Ames, Mason, pp. 258-260.
Mason, pp. 308-310.
Lochner v. New York, Mason, pp. 340-342.
Supplementary Resources:
Mason, “The Case of the Overworked Laundress,” in Garraty, Quarrels, pp. 193-208.
Muller v. Oregon, 208 U.S. 412 (1908).
EIGHTH WEEK (March 9-11) – Debating the Commerce Clause: From Justice Day’s “Double-
Barreled Shotgun” to the Sick Chicken (1910-1935)
Foreign Policy and the President (even if the President is FDR)
Progress Quiz #4 – Monday, March 9 (at end of class)
Required Readings:
Hammer v. Dagenhart, Mason, pp. 260-262.
Stafford v. Wallace, Mason, pp. 262-264.
Frank Friedel, “The Sick Chicken Case,” in Garraty, Quarrels, pp. 233-252.
Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (“Blackboard” or handout).
Robert A. Divine, “The Case of the Smuggled Bombers,” in Garraty, Quarrels, pp. 253-265.
United States v. Curtiss-Wright Export Corp., Mason, pp. 124-126.
NINTH WEEK (March 16-18) -- The New Deal Crisis: FDR vs. “The Nine Old Men” (1935-1937)
Required Readings:
United States v. Butler, Mason, pp. 291-293.
Mason, pp. 230-235.
Carter v. Carter Coal Co., Mason, pp. 264-267.
NLRB v. Jones-Laughlin Steel Corp., Mason, pp. 267-269.
William E. Leuchtenburg, “The Case of the Wenatchee Chambermaid,” in Quarrels, pp. 266-
284.
West Coast Hotel Co. v. Parrish, Mason, pp. 345-346.
Supplementary Resources:
Adkins v. Children's Hospital, 265 U.S. 525 (1923).
Morehead v. Tipaldo, 298 U.S. 587 (1936).
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TENTH WEEK (March 23-25) – “The Roosevelt Court” (1937-1953)
Progress Quiz #5 – Monday, March 23
Required Readings:
United States v. Darby Lumber Co., 312 U.S. 100 (1941) (“Blackboard” or handout).
Wickard v. Filburn, Mason, pp. 269-271.
Korematsu v. United States, Mason, pp. 664-666.
Youngstown Sheet and Tube Co. v. Sawyer, Mason, pp. 126-130.
Supplementary Resources:
Abraham, Justices, Presidents and Senators, Chapter 9.
Noah Feldman,
Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court
Justices (2010).
ELEVENTH WEEK (April 6-8) -- Congress, the Court and Civil Rights: From the Grand Opera
House to Ollie’s Barbecue
Required Readings:
U.S. Constitution, Amendment XIII and Amendment XIV, Sections 1 and 5, Mason, pp.
681-682 (review).
Alan F. Westin, “The Case of the Prejudiced Doorkeeper,” in Garraty, Quarrels, pp. 139-156.
Civil Rights Cases (1883), Mason, pp. 621-623.
C. Van Woodward, “The Case of the Louisiana Traveler,” in Garraty, Quarrels, pp. 157-174.
Plessy v. Ferguson, Mason, pp. 613-615.
Alfred H. Kelly, “The School Desegregation Case,” in Garraty, Quarrels, pp. 307-333.
Brown v. Board of Education I, Mason, pp. 616-617.
Heart of Atlanta Motel v United States and Katzenbach v. McClung, Mason, pp. 271-272.
Supplementary Resources:
Clarence Thomas, “The Virtue of Defeat: Plessy v. Ferguson in Retrospect,” Journal of
Supreme Court History, 1997, Vol. II, pp. 15-24.
Taylor Branch, Parting the Waters: America in the King Years: 1954-1963 (1988).
Thurgood Marshall, “Reflections on the Bicentennial of the United States Constitution,”
Harvard Law Review, Vol. 101 (1987), pp. 1-5.
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TWELFTH WEEK (April 13-15) -- The Activism/Deference Debate: Stone and the Carolene
Products Footnote
Progress Quiz #6 – Monday, April 13
Required Readings:
Mason, pp. 311-313 (Please pay careful attention to U.S. v. Carolene Products Co., Footnote
4, as quoted on p. 312).
Irving Dilliard, “The Flag Salute Cases,” in Garraty, Quarrels, pp. 285-306.
Minersville School District v. Gobitis, Mason, pp. 541-545.
Mason, pp. 545-546.
West Virginia Board of Education v. Barnette, Mason, pp. 547-548.
Supplementary Resources:
Colegrove v. Green, 328 U.S. 549 (1946).
Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (1956).
THIRTEENTH WEEK (April 20-22) – The Carolene Products Footnote Applied: The Warren
Court (1953-1969).
Required Readings:
Baker v. Carr, Mason, pp. 190-193 + handout of Justice Clark’s concurring opinion
(Blackboard or handout).
Reynolds v. Sims, Mason, pp. 193-197.
Ferguson v. Skrupa, Mason, p. 347.
***SECOND MIDTERM EXAM – Wednesday, April 22***
OR
***Course Project Papers Due – Wednesday, April 22***
Supplementary Resources:
Griswold v. Connecticut (1965), Mason, pp. 565-567.
Shapiro v. Thompson (1969) Mason, pp. 632-633.
Lucas A. Powe, Jr., The Warren Court and American Politics (2000).
Abraham, Justices Senators, and Presidents, Chapter 10.
 17 

FOURTEENTH WEEK (April 27-29) – The Federalism Debate All Over Again: Rehnquist and
Limits on Federal Power (1976-2012)
Required Readings:
National League of Cities v. Usery, 426 U.S. 833 (1976) (“Blackboard”).
United States v. Lopez, pp. 272-276.
United States v. Morrison, Mason, pp. 164-169.
Gonzales v. Raich, pp. 169-174.
National Federation of Independent Business v. Sebelius (2012) (commerce clause)
(Blackboard).
Supplementary Resources:
Fry v. United States, 421 U.S. 542 (1975).
Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).
Tennessee v. Lane, 541 U.S. 509 (2004).
J. Mitchell Pickerill and Cornell W. Clayton, “The Rehnquist Court and the Political
Dynamics of Federalism,” Perspectives on Politics , Vol. 2 (June 2004), pp. 233-
248.
FIFTEENTH WEEK (May 4-6) – President, Congress, and Court: The Key Disputes on Checks and
Balances
Progress Quiz #7 – Monday, May 4
Required Readings:
U.S. Constitution, Articles I, II, and III and Amendment IV, Mason, pp. 675-679 and 680.
United States v. United States District Court, Mason, pp. 667-669.
War Powers Resolution of 1973, Mason, pp. 131-132.
United States v. Nixon, Mason, pp. 107-110.
Morrison v. Olson, Mason, pp. 120-123.
Clinton v. Jones, Mason, pp. 113-116.
Boumediene v. Bush, Mason, pp. 669-674.
Supplementary Resources
Mistretta v. United States (1989), Mason, pp. 94-96.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
FINAL EXAM – Monday, May 11 at 1 p.m.
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