Constitutional Law
Politics 3323/5302
Fall 2011
Dr. David Upham
Syllabus
Contact:
Email is the best way to get a hold of me. My email address is
davidrupham@yahoo.com. Office hours: MWF, 2:00–2:50.
Course Objectives:
The purpose of this course is to study the Constitution and the manner in which its text
has been interpreted, primarily by the Supreme Court. The focus of our study will be the
way the people have, through the Constitution, delegated different powers and
responsibilities to the states and the three branches of the federal government. A
different course, “Civil Rights,” offered in the spring, focuses on those provisions of the
Constitution by which the people have constitutionally secured certain individual rights.
Course Requirements:
Essays
Examinations
Quizzes
30% (Outline, 10%; second draft, 20%)
60% (Mid-terms, 15% each; final exam, 30%)
10%
[Graduate students: The paper will account for 50% of the grade, the exams 40% (10%
for each midterm and 20% for the final) and quizzes 10%.]
Essays: There will be one essay assignments of roughly 7 pages for undergraduates, 12–
15 pages for graduate students. Essay assignments will be distributed during the course
of the semester.
Examinations: There will be two midterms (or third terms) and a final exam. The
midterms will take place on Tuesday October 4, and Tuesday, November 8. In most
cases, a student will receive a score of 0% for a missed exam. Do not take this course if
you have scheduled any activities that will conflict with the date and time of the
examination.
Quizzes: There will be regular quizzes on the assigned reading.
Class attendance and participation: The degree to which the students make a positive
contribution to classroom discussion will contribute to their final grades in the class.
Moreover, the university attendance policy, as described in the University Bulletin, will
be enforced. After two unexcused absences, a student will likely be dropped from the
course.
University policies on cheating and plagiarism will be strictly enforced. Plagiarism is
any attempt to represent the work of another as one’s own. Consequently, in your essays,
you must provide a footnote citation for any quotation or paraphrase from another’s
work.
Required Texts:
David M. O’Brien, Constitutional Law and Politics: Struggles for Power and
Governmental Accountability (vol. 1) (8th ed. 2011).
Federalist Papers (any addition—or simply print out discrete numbers from the internet).
Assignments
Class 1: Why and how the people ordained and established this Constitution for the
United States of America
Popular adoption of the original Constitution
Articles of Confederation, Preamble, Arts. III, XIII
Constitution, Preamble, Arts. VII, V, VI, cls. 1–2
Federalist 1 (first para.); Federalist 40; Federalist 43 (power “9” only);
Federalist 85 (last para.)
Popular adoption of amendments
Constitution, art. V
Federalist 43 (power “8” only); Federalist 85 (last six paragraphs).
O’Brien, 548–551
Class 2: How the people choose the members of Congress: the original Constitution
Constitution, art. I, § 2, cls. 1, 3, 4
Federalist 52 (first three paras. only).
Constitution, art. I, § 3 cls. 1–2; Art. V (last clause).
Federalist 62; Federalist 63 (first six paras. only)
Constitution, amend. XVII.
Constitution, art. I, § 4
Federalist 59–61 (optional)
Class 3–4: How the people choose the members of Congress: subsequent development of
constitutional protections for equal representation and equal voting rights
O’Brien, 868–74
Baker v. Carr (1962)
Wesberry v. Sanders (1964)
Constitution, amend. XIV, §§1–2.
O’Brien, 874–79, 892–895, 881–888
Reynolds v. Sims (1964) (omit Harlan opinion)
Shaw v. Reno (1993) (O’Connor opinion only)
Vieth v. Jubelirer (2004) (omit Souter and Breyer opinions)
Constitution, amends. XV, XIX, XXIV, XXVI.
Obrien, 839–848
South Carolina v. Katzenbach (1966) (omit Black opinion)
Class 5: Qualifications and immunities of members of Congress
Qualifications
Constitution, art. I, § 2, cl. 2; art. I § 3, cl. 3; art. VI, cl. 3; art. I, § 5.
Federalist 52 (third paragraph), 62 (first two paragraphs)
O’Brien, 492–508
Powell v. McCormack (1969)
U.S. Term Limits, Inc. v. Thornton (1995)
Congressional immunity
Constitution, art. I, § 6, cl. 1
O’Brien, 508–13
Gravel v. United States (1972)
Class 6: Powers of Congress: elastic clause(s?): necessary and proper power, power to
tax (or borrow) and spend for the “common defense and general welfare”
Necessary and Proper Clause
Constitution, art. I, § 8, cl. 18
Federalist 33 and Federalist 44 (in both, only discussion of “necessary and
proper” clause)
O’Brien, 552–67
McCulloch v. Maryland (1819).
Class 7: Powers of Congress: Tax and spending powers and their limitations
Constitution, art. I, sec. 8, cls. 1–2; art. I, § 6, cl. 1; art. I, § 7, cl. 1 art. I, §
9, cls. 1, 4–7; amends. XVI, XXVII.
Federalist, 41 (last five paragraphs)
O’Brien, 669–680
Steward Mach. Co. v. Davis (1937)
United States v. Kahriger (1953)
South Dakota v. Dole (1987)
Class 8: Powers of Congress: commerce power and comprehensive national economic
regulation
Constitution, art. I, § 8, cls. 3–8; art. I, § 9 cls. 1, 4–7
Federalist 42 (second half—concerning those powers of the “third
class”—interstate harmony)
O’Brien, 568–589
Gibbons v. Ogden (1824)
United States v. E.C. Knight Co. (1895)
Hammer v. Dagenhurt (1918)
Class 9: Powers of Congress: commerce power and comprehensive national economic
regulation (cont’d)
O’Brien, 589–91, 595–609
NLRB v. Jones & Laughlin Steel Corp. (1937)
United States v. Darby Lumber Co. (1941)
Wickard v. Filburn (1941)
Class 10: First Midterm Exam: October 4
READINGS: Powers of Congress: various express legislative powers and express
limitations
Legislative powers and limits concerning foreign-affairs and the military
Constitution, art. I, § 8, cls. 10–16; art. II, § 2, cl. 1; art. III, § 3, cl. 2; art.
IV, § 4; art. I, § 9, cl. 2; amends. II–III
Reserved state legislative authority regarding military and foreign affairs
Constitution, art. I, § 10, cls. 1, 3; art. I, § 8, cls. 15–16
Legislative powers over federal territories, admission of new states, and
interstate relations
Constitution, art. I, § 8, cl. 17; art. IV, §§ 2–3
Other express limits on the legislative powers—a “bill of rights”
Constitution, art. I, sec. 9, cls. 2–3, 8; art. III, sec. 3; amends. I–V; VI–
VIII; IX–X
Federalist 84 (optional)
Class 11: Powers of Congress: commerce power and various non-economic or quasieconomic harms (racial discrimination, private violence, invasion of privacy, etc.)
Const. amend. XIII; amend. XIV, §§ 1, 5
O’Brien, 591–93, 609–30, 644–48
Heart of Atlanta Motel v. United States (1964)
Katzenbach v. McClung (1964)
United States v. Lopez (1995)
United States v. Morrison (2000) (Majority opinion only)
Class 12: Powers of Congress: implied limits to the residual commerce power of the
states— “dormant commerce power” and preeemption
Constitution, art. I, § 10, cls. 1–2; art. IV, cl. 2
Federalist 32
O’Brien, 692–97, 698–706, 711–15, 665, 668–69
Cooley v. Bd. of Wardens of the Port of Philadelphia (1851)
So. Pac. Co. v. Arizona (1945)
Pennsylvania v. Nelson (1956)
Gonzales v. Oregon (2006) (Thomas opinion only)
Class 13: Powers of Congress: executive and judicial powers
Executive and quasi-executive powers—Senate involvement in
appointments and treaties
Constitution, art. II, § 2, cl. 2
Federalist 75–76.
Quasi-judicial powers: Powers to regulate the judiciary by legislation
Constitution, art, I, § 8, cl. 9; art. III, § 1; art. III, § 2, cl. 2; art. IV, § 1
O’Brien, 197–200
Judicial power: power to prosecute and try impeachments
Constitution, art. I, § 2, cl. 5; art. I, § 3, cls. 6–7; art. II, § 4
Federalist 65
O’Brien, 541–545
Nixon v. United States (1993)
Auxiliary investigation power
Constitution, art. I, § 8, cl. 18
O’Brien, 516–519
Class 14: Powers of Congress—implied limits: state reserved sovereignty and anticommandeering rule
Constitution, art. I, § 8, cl. 15; amend. X
Federalist 27 (last para.)
O’Brien, 757–73
New York v. United States (1992)
Printz v. United States (1997)
Mack v. United States (1997)
Class 15: Powers of Congress—implied limits: non-delegation rule
Constitution, art. I, § 1, cl. 1; art. I, § 7, cl. 2; art. II, § 3; art. I, § 6 cl. 2
Federalist 73 (optional), Federalist 74 (last two sentences)
O’Brien, 425–27, 434–39, 442–63
Schechter Poultry (1935) (1980)
INS v. Chadha (1983)
Clinton v. City of New York (1998)
Class 16: President: Power to execute laws and at times not execute laws (pardon power)
Constitution, art. II, § 1; art. II, § 2, cl. 1; art. II, § 3
Federalist 74
O’Brien, 230–48
United States v. Curtiss-Wright Corp. (1936)
Dames & Moore v. Regan (1981)
Class 17: President: How the people select (and remove) the President and VicePresident
Constitution, art. II, § 1, cl. 2; art. VI, cl. 3; amends. XII, XX, XXII,
XXIII, XXV; art. II, § 4
O’Brien, 918–29, 479–82, 487
Bush v. Gore (2000)
Articles of impeachment against Presidents Nixon and Clinton
Class 18: President: Power as commander-in-chief and extraordinary warmaking powers
Constitution, art. II, § 2, cl. 1; art. I, § 8 cls. 11–16; art. I, § 9, cl. 2; art. I, §
10, cl. 3.
Power to wage war
O’Brien, 331–36
War Powers Resolution (1973)
Power to blockade
O’Brien, 288–92
Prize Cases (1863)
Power to seize persons
O’Brien, 298–303
Korematsu v. United States (1944) (omit Murphy and Jackson opinions)
Power to seize property
O’Brien, 353–68
Youngstown Steel & Tube Co. v. Sawyer (1952)
Power to establish special domestic courts
O’Brien, 292–98
Ex Parte Milligan
Class 19: Second mid-term: Tuesday November 8
Class 20: President: Privileges
O’Brien, 463–479, 482–86
United States v. Nixon (1974)
Clinton v. Jones (1997)
Class 21: President: Power to make treaties and executive agreements
Constitution, art. II, § 2, cl. 2
Federalist 74 (second paragraph only) Federalist 75
O’Brien, 248–259, 160, 163–64, 257–59, 263–73
Missouri v. Holland (1920)
United States v. Pink (1942)
Goldwater v. Carter (1979) (Brennan opinion only)
Treaty Re-interpretation Controversy
Medellin v. Texas (2008)
Class 22: President: Appointments (and removal) power
Constitution, art. II, § 2, cl. 2; art. II, §§ 3–4
O’Brien, 380–83, 397–425
Humphrey’s Executor v. United States (1935)
Bowsher v. Synar (1986)
Morrison v. Olson (1988)
Class 23: Judiciary: How the people select judges of the Supreme Court and other federal
judges, and the nature of the judicial power entrusted to them
Constitution, art. III, § 1; art. I, § 8, cl. 9; art. II, § 2, cl. 2; art. II, §§ 3–4;
art. III, §§ 2–3; art. VI, cl. 3
Federalist 74 (last paragraph) Federalist 78, 80, 81, 82 (first 5 paras. only)
Class 24: Judiciary: Power and duty of judicial review—and the binding authority of the
Supreme Court’s precedents
Duty and power of judicial review
Constitution, art. III, § 2, cl. 1; art. VI, cls. 2–3
O’Brien, 45–55
Marbury v. Madison
Eakin v. Raub (to be supplied)
Binding on the Supreme Court itself—retrospectively and prospectively?
O’Brien, 124–25, 191–192, 211–212
Whorton v. Bockting (2007)
Binding on the “inferior” federal courts?
O’Brien, 196, 212–14
Jaffree v. Bd. of School Comm’rs. Of Mobile County (1983)
Class 25:
Judiciary: Power and duty of judicial review—and the binding authority
of the Supreme Court’s precedents (cont’d)
Binding on the state courts
Federalist 82 (last two paragraphs)
O’Brien, 800–12
Martin v. Hunter’s Lessee (1816)
Cooper v. Aaron (1958)
Binding on the states as to their own state constitutions?
O’Brien, 820–23
Binding on the President and Congress and the polity as a whole?
O’Brien, 30–38, 43–45, 55–62, 58–66, 194–95, 200–203
Comments of Jefferson, Jackson, Lincoln, Roosevelt on finality of judicial
decision
Southern Manifesto
Class 26: Judiciary: Power limited to “cases” or “controversies,” but not “political
questions”
Constitution, art. III, § 2
O’Brien, 102–107, 112–23, 144–56, 164–72
Hein v. Freedom from Religion Foundation, Inc. (2007)
Baker v. Carr (1962) (Brennan opinion only)
Elk Grove Unified Sc. Dist. v. Newdow (2004)
Class 27: Judiciary: power limited by sovereign immunity of states
Constitution, art. III, § 2, amend. XI
O’Brien, 732–739, 773–82, 789–94
Seminole Tribe of Florida v. Florida (1996)
Alden v. Maine (1999)
Nevada Dep’t of Human Resources v. Hibbs (2003)
FINAL EXAM: to be administered at the time and place established by the Registrar’s
office.