Poli Sci 411, Constitutional Law I
Fall 2009
Instructor: Liane Kosaki
Office: 101 B North Hall
Email: lkosaki@wisc.edu
Office Hours: Wednesdays, 1:30-3:00 PM or by appt.
TAs for the course: Leticia Bode and Stefani Veselinovich
“The United States Constitution has proved itself the most marvelously elastic compilation of rules of
government ever written.” Pres. Franklin Roosevelt
“The Constitution was written to be understood by the voters; its words and phrases were used in their normal
and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction,
and no excuse for interpolation or addition.” Martin v. Hunter's Lessee
"We are under a Constitution, but the Constitution is what the judges say it is." Chief Justice Charles Evans
Hughes
“We are not final because we are infallible, but we are infallible only because we are final.” Justice Robert
Jackson
The United States Constitution is the oldest written constitution in the world. As a legal document, it defines the
principles that underlie our government, and that seems to relegate it to interpretation by lawyers. As a document that
defines a democracy, its framers hoped that citizens would understand it. This tension between lay understanding and
expert interpretation is one that generates continued questions about the meaning of our Constitution, and the answers
to those questions are often resolved by political conflict and legal judgment.
Although this course deals with constitutional law, this course is not, nor is it meant to be, a substitute for or
equivalent to a law school course in constitutional law. Unlike a law school course, the purpose of this course is not
to make students into constitutional lawyers. Rather, the goal of the course is to get its members to think about
constitutional law as a part of the political process. Although the cases we examine can be understood and should be
understood as the result of legal considerations, they must also be understood as reflecting political factors as well.
Thus, we will approach cases not only as examples of the use of legal doctrine, but also as political phenomena. We
will consider the nature of the decision-- was this decision the only one possible? What other possible decisions could
have been made? What factors-- both legal and political-- might account for this decision? What is the impact of the
decision-- i.e., what interests are helped or hurt by the outcome? Finally, we focus on the role of the Court in the
political process. What are the consequences of thinking about the Court as a political actor? It is my hope that
engaging in this process will enable students to better understand our political process and the nature of the Court as a
political and legal institution.
The political importance of the Court is evident in the controversy surrounding nominations to the Court, the
decisions that the justices make, and finally, in the effects that Supreme Court decisions have on American politics
and the public. Thus, in examining the Court’s role, we will think about the history of the Court, the nature of the
Court’s power as a political institution, the role that justices’ ideologies and orientations to the law play in shaping
their decisions, and the impact of the Court’s decisions.
The first part of the course is devoted to an overview of the Constitution and the Supreme Court. Here we examine
the political, historical, and ideological context of the Constitution. We will also go over the workings of the Supreme
Court, judicial selection, and the nature and limits of the Court’s power. The second part of the course will focus on
the development of the scope and power of the federal government as reflected through the relationship between
national and state governments (otherwise known as federalism) and the federal government’s regulatory power as
exercised through the commerce and tax powers and the due process clause. Finally, we will take a look at the other
two branches of government, the Congress and the Presidency—what role has the Court played in defining and
shaping their powers?
Course requirements: It should go without saying that you are expected to read the assigned materials and attend
lectures and discussion sections. Attendance in discussion sections is mandatory. Sections provide opportunities for
more extended examination of the course material; they should help you better understand the material and your TAs
will be great resources for you in that regard.
Grades in this course will be based on several components: a short briefing exercise; three exams; quizzes; and class
participation. The briefing exercise will require you to “brief” or summarize a case. The purpose of briefing cases is
to provide you with a way of quickly summarizing the important facts, holdings, and reasoning in the Court’s
decision. This is a valuable skill that will help with case understanding and studying for exams. There will be an inclass exam on Wednesday, Oct. 14. This exam will be a combination of multiple choice and short essay questions.
The second exam, really a paper, will require you to take on a role with respect to a hypothetical case. More details
on this exercise will be provided later in the semester. The hypothetical for this exercise will be provided to you at
least a week before the due date. This second exercise will be due in lecture on Monday, Nov. 16. The final exam
will be a take-home exam, due on Friday, Dec. 18. In addition, there will be eight quizzes during the course of the
semester. Students may drop the lowest two grades on the quizzes. The quizzes will generally involve two or three
short questions that you should be able to answer if you have done the reading and attended lecture. The quizzes will
provide me with feedback on the clarity of the lectures and on your understanding of the material.
Final grades will be determined as follows:
Case brief: 5%
Participation: 5%
Two midterm exams: 50%
Quizzes: 10%
Final Examination: 30%
Please note that I want to fully include persons with disabilities in this course. Please let me know during the first two
weeks of the course if you need any special accommodations in the curriculum, instruction, or assessments of this
course to enable you to fully participate. I will try to maintain the confidentiality of the information you share with
me.
Late paper/makeup exam policy: Work is due at the times noted. Extensions on the paper will be provided only in
the case of illness or other serious personal circumstances, and only if I am contacted in advance. Late papers will be
penalized one full grade for each day past the deadline. As a general rule, there are no makeup exams except in the
case of documented emergency. In all cases, the decision to award extensions or to provide a makeup exam is at my
discretion.
I have tried to schedule exams/papers to avoid conflicts with religious holidays. If, despite my efforts, it should
happen that a due date for an exam or paper conflicts with your observance of a religious holiday, please let me know
during the first two weeks of the semester so we can work on an accommodation.
A note on academic conduct: It should go without saying that you’re expected to conduct yourself honorably in this
class. This means treating yourself and others with respect. Please do not disrupt the class (e.g,, do not read the paper,
keep your cellphone on, listen to your MP3/Ipod, clean out your backpack, update your Facebook page, etc.) during
class. Please respect the views of others; discussion should be civil.
It is also expected that you will do your own work in this course. The university has rules defining academic
misconduct, and those who commit it are subject to penalties. I expect that you understand what academic
misconduct is. The formal definitions are posted on the Dean of Students’ web site:
http://www.wisc.edu/students/saja/misconduct/academic_misconduct.html.
Those who commit academic misconduct will be prosecuted, so please don’t do it.
Readings: Readings in Epstein and Walker are noted as E&W; all cases are in E&W unless otherwise noted
(readings in bold are in the online case archive). Other readings will be distributed via email. Please note that
readings may be subject to change during the course of the semester.
Week of Sept. 7 (Note: No class on Monday, Sept. 7, Labor Day) Introduction
Read the Constitution and amendments in E&W, pp. 687-696
Part I, E&W, pp. 3-11
Week of Sept. 14 Toward an understanding of the highest court in the land
E&W, Part I, Chap. 1, and Part II, pp. 55-59 and Chap. 2, pp. 62-93
Federalist 78, E&W, pp. 697-699
Cases: Marbury v. Madison, Martin v. Hunter’s Lessee, Eakin v. Raub
Week of Sept. 21
Remainder of Part II, Chap. 2
Cases: Ex Parte McCardle, Hamdan v. Rumsfeld, Baker v. Carr, Nixon v. US, Flast v. Cohen, City of Boerne
v. Flores
Some short additional readings on judicial selection will be distributed via email.
Week of Sept. 28 Federalism or, who’s the boss?
Part III, Chap. 6
Cases: McCulloch v. Maryland, Prigg v. Penn. (email), Dred Scott v. Sandford, Hammer v. Dagenhart, US
v. Darby Lumber, National League of Cities v. Usery, Garcia v. San Antonio Metro Transit Authority, New York v.
US, Printz v. US
Week of Oct. 5
Cases: Missouri v. Holland, Crosby v. National Foreign Trade Council, Pennsylvania v. Nelson, Pacific Gas
and Electric v. State Energy Resources, Wyeth v. Levine
Week of Oct. 12 The early days of the commerce clause (First Midterm in class: Wed., Oct. 14)
Part III, Chap. 7
Cases: Gibbons v. Ogden, US v. E.C. Knight, Stafford v. Wallace, Swift & Co. v. US, Schechter Poultry v. US,
Carter v. Carter Coal
Week of Oct. 19 Just how far does commerce go?
Cases: National Labor Relations Board v. Jones&Laughlin, Wickard v. Filburn, US v. Lopez, US v. Morrison,
Gonzalez v. Raich
Week of Oct. 26 The modern commerce clause
Cases: Champion v. Ames, Heart of Atlanta Motel v. US, Cooley v. Board of Wardens, Southern Pacific Co. v.
Arizona, Hunt v. Washington State Apple Advertising Comm’n, Maine v. Taylor, Granholm v. Heald
Week of Nov. 2 The only sure things are death and…
Part III, Chap. 8
Cases: Pollock v. Farmer’s Loan and Trust, S. Carolina v. Baker, Davis v. Michigan Dept. of Treasury,
McCray v. US, Bailey v. Drexel Furniture, US v. Butler, Steward Machine Co. v. Davis, S. Dakota v. Dole
Week of Nov. 9
Cases: Michelin Tire Corp. v. Wages, Complete Auto Transit v. Brady, Quill Corp. v. N. Dakota, Oregon
Waste Systems, Inc. v. Dept. of Environmental Quality
(Second Midterm Exam due Mon., Nov.16 in lecture)
Week of Nov. 16 The transformation of due process (Second Midterm Exam due Mon., Nov.16 in lecture)
Part III, Chap. 10
Cases: Slaughterhouse Cases, Munn v. Illinois, Allgeyer v. Louisiana, Lochner v. New York, Muller v.
Oregon, Adkins v. Children’s Hospital, Nebbia v. New York, West Coast Hotel v. Parrish, BMW v. Gore
Week of Nov. 23 “Takings” (Happy Thanksgiving!)
Part III, Chap. 11
Cases: US v. Causby, Penn Central Transportation Co. v. City of New York, Nollan v. California Coastal
Commission, Lucas v. S. Carolina Coastal Council, Hawaii Housing Authority v. Midkiff, Kelo v. City of New London
Week of Nov. 30 The Executive
Part II, Chap. 4
Cases: Bush v. Gore, In re Neagle, Morrison v. Olson, Myers v. US, Humphrey's Executor v. US, US v. Nixon,
Mississippi v. Johnson, Clinton v. Jones
Week of Dec. 7 The Legislature
Part II, Chap. 3
Cases: McCulloch v. Maryland, McGrain v. Daugherty, Watkins v. US, Barenblatt v. US, US v. CurtissWright, S. Carolina v. Katzenbach
Dec. 14: Last day of class