POSC 3209: Constitutional Law
Summer 2016, MTWR 6:00-9:00
Dr. Robert J. Hume
rhume@fordham.edu
Office: Faber 669
(718) 817-3964
The course introduces students to the U.S. Supreme Court and its case law in the areas of
separation of powers and federalism.
Topics include judicial review, constitutional
interpretation, and case selection, as well as major rulings on presidential power, the commerce
clause, and voting rights. No prior knowledge of the law is required, but students should have
some familiarity with American institutions either from PORU 1100 or an equivalent course.
Course Assignments
20%
30%
Midterm
Final
30%
20%
Moot Court
Participation
Required Text
O’Brien, David M. 2014. Constitutional Law and Politics, Volume 1: Struggles for Power and
Governmental Accountability. Ninth Edition. New York, NY: W.W. Norton. (CL&P)
Syllabus
I. The Supreme Court in the American Political System
5/26
Introduction to the Supreme Court
5/27
Judicial Review – CL&P: pp. 23-38 (essay), 45-55 (Marbury v. Madison); pp. 5558 (Eakin v. Raub)
5/28
Theories of Constitutional Interpretation – CL&P: pp.68-102 (essay)
II. Congressional Power
6/1
Foundations of Congressional Regulatory Power – CL&P: pp. 540-550 (essay),
551-562 (McCulloch v. Maryland)
Taxing and Spending Powers – CL&P: pp. 661-665 (essay), 665-669 (Steward
Machine Co. v. Davis), 669-672 (South Dakota v. Dole)
6/2
Commerce Clause I – CL&P: pp. 568-574; 583-588 (essay), 562-567 (Gibbons v.
Ogden), 590-596 (NLRB v. Jones & Laughlin Steel Corp.), 601-604 (Wickard v.
Filburn), 604-613 (Heart of Atlanta Motel v. US and Katzenbach v. McClung)
Commerce Clause II – CL&P: pp. 613-625 (U.S. v. Lopez), 639-651 (U.S. v.
Morrison), 652-660 (Gonzales v. Raich)
6/3
2
The Tenth Amendment – CL&P: pp. pp. 743-756 (essay), 757-769 (Garcia v. San
Antonio Metropolitan Transit Authority); 769-775 (New York v. United States),
775-786 (Printz v. United States and Mack v. United States)
6/4
Health Care – CL&P: pp. 672-688 (National Federation of Independent Business
v. Sebelius)
Part I of Paper is Due
III. Campaigns and Elections
6/8
Campaign Finance – CL&P: pp. 926-934 (essay), 946-956 (Buckley v. Valeo),
968-979 (Citizens United v. Federal Election Commission)
Judicial Elections – CL&P: pp. 994-998 (Republican Party of Minnesota v.
White); Blackboard (Williams-Yulee v. Florida Bar)
6/9
Reapportionment – CL&P: pp. 872-882 (essays), 885 (Baker v. Carr), 891-897
(Reynolds v. Sims), 898-908 (Vieth v. Jubelirer)
Voting Rights Act – CL&P: pp. 851-858 (essay), 860-865 (South Carolina v.
Katzenbach), 909-914 (Shaw v. Reno), 914-921 (Hunt v. Cromartie); Blackboard
(Shelby County v. Holder)
6/10
Catch-Up/Review
6/11
Midterm
IV. Presidential Power
6/15
Sole Organ Theory – CL&P: pp. 244-252 (essay), 248-249 (Federalist 70), 236238 (essay), 301-304 (Prize Cases), 253-255 (U.S. v. Curtiss-Wright Corporation)
Presidential Power and Civil Liberties – CL&P: pp. 284-289 (essay), 304-310 (Ex
parte Milligan), 310-319 (Korematsu v. U.S)
6/16
The Bush Administration – CL&P: pp. 292-299 (essay), 319-323 (Rasul v. Bush),
325-342 (Boumediene v. Bush)
Limits on Presidential Power – CL&P: pp. 359-366 (essay), 366-381 (Youngstown
Sheet & Tube Company v. Sawyer), 381-390 (New York Times v. U.S.); 483-491
(U.S. v. Nixon), 495-499 (Clinton v. Jones)
6/17
Appointment and Removal Powers – CL&P: pp. 391-394 (essay); 396-407
(Myers v. United States); 407-410 (Humphrey’s Executor v. United States); 410418 (Bowshar v. Synar); SKIM: Blackboard (NLRB v. Canning)
3
Legislative Powers in the Administrative State – CL&P: pp. 435-443 (essay);
453-463 (INS v. Chadha); 464-475 (Clinton v. City of New York)
6/18
Catch-Up/Review
6/22
Part II of Paper is Due
V. Access to Courts
6/23
Standing – CL&P: pp. 104-114 (essay), 140-144 (Lujan v. Defenders of Wildlife),
130-136 (Flast v. Cohen), 144-149 (Hein v. Freedom from Religion), Blackboard
(Arizona Christian School Tuition Organization v. Winn)
Political Questions – CL&P: pp. 121-123 (essay), 149-160 (Baker v. Carr), 160164 (Goldwater v. Carter), 164-172 (Elk Grove v. Newdow)
6/24
Judicial Federalism – CL&P: pp. 820-823 (essay), 824-828 (Michigan v. Long),
828-832 (People v. P.J. Video), 215-219 (Kentucky v. Wasson), Blackboard (In re
Marriage Cases; Kerrigan v. Commissioner of Public Health)
6/25
Final Exam
PAPER ASSIGNMENT
For the paper assignment (30%), you will write a mock Supreme Court opinion evaluating the
following lower court opinion, which is currently working its way up to the Supreme Court. A
full .pdf file with the text of the lower court’s opinion is available on the class Blackboard page.
Commonwealth of Virginia v. Sebelius (East Dist. VA, 2010)
Facing intractable gridlock in Congress, President Obama developed an innovative approach to
immigration policy. On November 20, 2014 the Secretary of the Department Security issued an
order establishing a new program utilizing deferred action to stay deportation proceedings and
award certain benefits to approximately four to five million individuals residing illegally in the
United States. The present case, filed in an attempt to enjoin the rollout and implementation of
this program, was initiated by the State of Texas and twenty-five other states or their
representatives. Specifically, the States allege that the Secretary’s actions violate the Take Care
Clause of the Constitution. On February 16, 2015, United States District Judge Andrew S.
Hanen issued an injunction prohibiting the policy from going into effect.
For the purposes of this assignment, we will assume that Judge Hanen’s opinion has been
appealed directly to the U.S. Supreme Court and that the justices will consider this question:
Has President Obama violated the separation of powers by exceeding his authority to
“take care that the laws be faithfully executed”?
4
Assignment
Students will write a 10-12 page paper evaluating the lower court’s opinion with regards to both
of these two questions. Each student will be assigned a particular justice who is currently sitting
on the supreme court or who has recently retired. Students will write their papers in the voice of
this justice, as though their justice has been assigned the majority opinion.
The paper is due in two installments. In the first part (due 6/4), students will write 2-3 pages
summarizing the jurisprudential philosophy of their justice. What is the justice’s general
approach to the constitution? How does the justice approach questions of Congressional power?
In the second part (due 6/22), students will write an 8-10 page majority opinion, in the voice of
their justice, as though their justice had been assigned the majority opinion. Students must
evaluate the lower court opinion based on the question presented.
Paper Requirements
For the paper, students are expected to consult at least 10 academic sources (e.g., books, law
review articles) plus 10 cases, though the best papers will consult as many cases as are necessary
to address the questions presented. Students may of course consult the lower court opinion, as
well as the casebook. However, it is my expectation that students will rely primarily on the full
versions of the cases (not the excerpts from the casebook), available on Lexis.
Proper legal citation is expected for all legal materials. These generally appear at the end of the
sentence, for example, Roe v. Wade, 410 U.S. 113 (1973). The first number (410) represents the
volume of U.S. Reports in which Roe v. Wade appears. The second number (113) is the page
number on which the opinion starts. In Lexis, you can locate page numbers by following the
bracketed numbers [**114] in the body of the opinion. Note that there are multiple citation
formats, so make sure that you are following the appropriate numbers.
For more information on legal citations, consult the site http://www.law.cornell.edu/citation/.
You should also pay attention to how justices cite legal materials themselves. Put citations to
non-legal writings (i.e., academic writings) in footnotes.
OTHER COURSE POLICIES
Attendance/Tardiness: Attendance at all class meetings is mandatory unless an absence is
excused in advance. Tardiness will also result in a reduction of your participation grade.
Participation. Participation is a major component of this course (20%). Students will not
receive a satisfactory participation grade simply by attending class and sitting quietly: regular,
thoughtful participation is required. Effective participation requires reading the cases closely,
reflecting on them critically, and being prepared to discuss them in class
Exams. There will be one midterm exam (20%) and a final (30%). The exams include shortanswer and essay questions. The final covers only post-midterm material. Exams will not be
rescheduled except under extraordinary circumstances and not unless arranged with me in
5
advance. Legitimate excuses may include medical conditions (with appropriate documentation)
or family emergencies (with a dean’s excuse). You may not reschedule an exam because you
feel tired, stressed, or overworked, so budget your time carefully. Unexcused absences from
exams cannot be made up and will result in a failing grade for the course.
Cheating/Plagiarism. Under no circumstances will plagiarism be tolerated. Plagiarism
includes (but is not limited to) copying all or part of another student’s work, copying (or closely
paraphrasing) all or part of another source without proper attribution, and misrepresenting your
sources of information. To enforce the university’s standards on academic integrity, all students
are required to upload copies of their written work to turnitin.com (as discussed in class).
Plagiarism will result in a failing grade on the assignment and a report to the dean.
****Remember that the summer session schedule is intensive. Make-up opportunities are
limited. Prepare to be working at a high level throughout the term.