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Department of Politics

CALENDAR & ASSIGNMENTS
Politics 365 -- December 2003

DECEMBER 18, 2003

SHORTCUTS TO DAILY ASSIGNMENTS

 

MONDAY

TUESDAY

WEDNESDAY

THURSDAY

FRIDAY

WEEK #1

1:00 p.m.

1:00 p.m.

9:00 a.m.

THANKSGIVING
HOLIDAY

WEEK #2

9 a.m. & 1 p.m.

1:00 p.m.

1:00 p.m.

1:00 p.m.

1:00 p.m.

WEEK #3

1:00 p.m.

1:00 p.m.

1:00 p.m.

1:00 p.m.

1:00 p.m.

WEEK #4

1:00 p.m.

1:00 p.m.

1:00 p.m.

1:00 p.m.
Final Exam

 

This course addresses itself to three broad and interrelated areas of constitutional interpretation. These three areas are related to chapters in your text as follows:

Separation of Powers & the Struggle for Supremacy within the National Government
  • Judicial Power -- Chapter 1
  • Legislative Power -- Chapter 2
  • Executive Power -- Chapter 3
Federalism & the Struggle for Supremacy between the Nation and the States
  • Powers of the National Government in the Federal System -- Chapter 4
  • The Regulatory Power of the States in the Federal System -- Chapter 5
Economic Regulation & the Struggle to Constrain Capitalism
  • Powers of the National Government in the Federal System -- Chapter 4
  • The Regulatory Power of the States in the Federal System -- Chapter 5
  • Property Rights and Economic Liberties -- Chapter 6

I have expressed each of the three central themes in terms of struggle in order to remind you that the study of "law" is also the study of politics and power. Court cases have winners and losers, and court decisions help determine the structure of power in our society. In practice, as the outline above demonstrates, the issues of federalism and economic regulation have often been addressed in the same cases.

Each of the six chapters which you are assigned has an introductory essay. Each student is responsible for the material in these essays as well as for the cases assigned on the following pages. The introductory materials are all assigned at appropriate places in the course, but you might want to read all the chapter introductions as we begin, referring back to them as necessary in order to refresh your memory and to draw on insights which may have escaped you the first time around.

This course makes use of the chapter organization provided by Ducat but in a modified form so as to present a picture of the historical development of constitutional interpretation as a whole. What follows is an outline of the course broken into daily units. Arabic numerals designate pages to be read in the 8th edition of Constitutional Interpretation. Pages in square brackets correspond to the 7th edition where possible. You must complete each set of readings by class time on the day for which it is assigned. The assignments for some cases begin on a page prior to the actual case. You should take than as an indication that you ought to read this prefatory material.



DAY #1

An Introduction to the Work of the Supreme Court -- part 1 of 3

watch: This Honorable Court

Here are some questions to ponder as you watch the video on Monday, as you read your assignment for Tuesday and Wednesday, and indeed for the rest of the course. These are important questions, but they are far easier to ask than to answer. If you can make significant progress toward a sophisticated understanding of these issues raised here, you should probably consider the course a great success. Certainly, I will consider you a great success!

1.      What is policy making? Does the Court do it? Does that make the court political?

2.      Why do justices regularly deny a policy making role? And why do they surround themselves with symbolism, ritual, secrecy and formality?

3.      How have efforts to limit governmental power led to the emergence of a powerful Supreme Court?

4.      How did the court acquire the power of judicial review? Is such a power inevitable? Would the framers approve? Do you?

5.      How do the mechanics of the judicial process affect the cases heard and how they are decided? Are there systematic biases in the process which leads eventually to a judicial decision by the highest court? [Think about standing, jurisdiction, case selection procedures, decision procedures, and costs.]

6.      What are the major sources of power for the court? What are the major constraints on its power? There are clearly legal and political constraints; are there others as well? To what extent are justices bound by the precedents of their predecessors?

7.      What distinguishes constitutional from statutory interpretation? What modes of legal reasoning are associated with each?

8.      Can the court be justified in terms of democratic theory? Does it speak for the people? Does it represent majority opinion? Is it more expert than the other branches? Is it less political?

9.      How has the court evolved as an institution over the past 200 years? What are the consequences of that evolution for the judicial process? For the substance of decisions? For the status and power of the court?

10.  Who gets appointed to the court? What are the selection criteria? Can the president control the court? What is the role of the Senate? What should it be?

11.  Can the work of the court be successfully subjected to the tools of modern political science? Can judicial decisions be predicted? What are the probable consequences of court predictability?

12.  What factors enhance the probability that court decisions will be obeyed? What factors enhance the probability that they will be ignored? How does the probability of compliance affect the latitude of judicial decision-making?

13.  Is justice blind? Should it be? What would really blind justice look like? Could we recognize it if we saw it?

14.  In the last analysis, do courts really rule America? Should they? If courts don't, who (or what) does?

Introductory PowerPoint

DAY #2

An Introduction to the Work of the Supreme Court -- part 2 of 3

  • The History of the Supreme Court
  • The Role of the Courts in Constitutional Interpretation
  • The Process of Supreme Court Decision-Making
  • The Structure and Function of the Federal Courts
  • The Relationship Between This Course and Politics 366
  • The Anatomy of a Supreme Court Decision in its Cultural Context
  • Mini-history of the U.S. Supreme Court
  • Day #1 PowerPoint

read: David M. O'Brien: Storm Center, 6th ed., chapters 1-3.

Keep thinking about the questions set forth under Day #1 above.

DAY #3

Morning Class! South 307

Afternoon Class: An Introduction to the Work of the Supreme Court
-- part 3 of 3

  • The History of the Supreme Court
  • The Role of the Courts in Constitutional Interpretation
  • The Process of Supreme Court Decision-Making
  • The Structure and Function of the Federal Courts
  • The Relationship Between This Course and Politics 366
  • The Anatomy of a Supreme Court Decision in its Cultural Context
  • Ideological Balance on the U.S. Supreme Court

read: David M. O'Brien: Storm Center, 6th ed., chapters 4-6.

Keep thinking about the questions set forth under Day #1 above.


Happy Thanksgiving!

Documentary History
of Constitutional Interpretation
in the United States
1789-2002


DAY #4

Morning Class: Room 127, Cole Library
Mandy Swygert-Hobaugh, Consulting Librarian

  • Tools for Legal Research
  • Cases and Codes
  • Preparing for Your Appellate Brief and Oral Argument

  • Legal Citations

The Nationalist Court (1789-1865) -- part 1 of 2 [32 pp.]

Judicial Power


DAY #5

The Nationalist Court (1789-1865) -- part 2 of 2 [50 pp.]

Legislative Power

  • Legislative Power 104 [79]
  • Qualifications of Members of Congress 104-105 [79-80]
  • The Sources and Scope of Congress's Power to Legislate 105-106 [80-81]
  • Enumerated and Implied Powers 106 [81]
  • McCulloch v. Maryland (1819) 107-113 [82-89]
  • Dred Scott v. Sandford (1857) pdf text dissent by Mr. Justice Allin

Powers of the National Government in the Federal System

  • Powers of the National Government in the Federal System 272-273 [270-271]
  • Dual Federalism 273-275 [271-273]
  • National Supremacy and Cooperative Federalism 275-277 [273-276]
  • The General Scope of Congress's Power to Regulate Interstate Commerce 277-278 [276-277]
  • Gibbons v. Ogden (1824) 278-284 [277-284]
  • The Negative or Dormant Commerce Clause 393 [403]
  • Cooley v. Board of Wardens of the Port of Philadelphia (1852) 394-395 [404-406]

Property Rights and Economic Liberties

  • Property Rights and Economic Liberties 413-414 [425-427]
  • Fletcher v. Peck (1810) 415-417 [427-429]
  • Trustees of Dartmouth College v. Woodward (1819) 417-419 [429-432]
  • Note on Charles River Bridge v. Warren Bridge (1837) 419-421 [432-433]

A First Try at Generalization: Comparing the Marshall & Taney Courts

PowerPoint Review

DAY #6

The Gilded Age (1865-1900) [47 pp.]

Judicial Power

  • Appellate Jurisdiction 23-24 [24-25]
  • Ex Parte McCardle (1869) 24-26 [25-27]
  • Checking the Court 26-27 [27-28]
  • The Structure of the Judicial System 27-29 [28-29]
  • Writ of Certiorari 30-34 [29-34]
  • The Process by Which the Supreme Court Decides Cases 34-38 [34-38]
  • Judicial Independence 38 [38]
  • Discretionary and Ministerial Acts 78 [78]

Legislative Power

Executive Power

  • The Scope of Executive Power 191-194 [178-180]
  • Ex Parte Milligan (1866) 194-198 [181-186]

Powers of the National Government in the Federal System

  • The Rise of Dual Federalism / United States v. E. C. Knight (1895) 301-304 [304-305]

The Regulatory Power of the States in the Federal System

Property Rights and Economic Liberties

  • The Life & Death of Liberty of Contract 427-430 [440-444]
  • Butcher's Benevolent Ass'n v. Crescent City Livestock Landing & Slaughterhouse Co. [Slaughterhouse Cases] (1873) 430-434 [444-448]
  • Munn v. Illinois (1877) 434-437 [448-451]
  • Allgeyer v. Louisiana (1897) 437-439 [451-454]

PowerPoint Review

DAY #7

The Judiciary and the Welfare State (1900-1937) -- part 1 of 2 [32 pp.]

Tomorrow is the deadline for Case Brief #1

Judicial Power

  • Institutional Constraints on the Exercise of Judicial Power: Case and Controversy 38-40 [39-40]
  • Muskrat v. United States (1911) 40-43 [40-44]

Legislative Power

  • The Treaty Power 125 [101-102]
  • Missouri v. Holland (1920) 126-127 [102-104]
  • Delegation of Legislative Power 128-129 [105-106]
  • Hampton & Co. v. United States (1928) 129-132 [106-109]
  • Note -- The Panama Refining and Schechter Cases (1935) 132-133 [109-110]

Executive Power

  • Executive Power 176 [159]
  • Appointment and Removal Powers 176-177 [159-161]
  • Myers v. United States (1926) 178-182 [161-166]
  • Note -- Humphrey's Executor v. United States (1935) 182-185 [166-169]
  • Executive Authority in the Conduct of Foreign Affairs 249-250 [247]
  • Presidential Dominance in Foreign Relations 254-255 [252-253]
  • United States v. Curtiss-Wright Export Corp. (1936) 255-260 [253-256]
  • Executive Agreements 250 [247-248]
  • United States v. Belmont (1937) 250-253 [248-250]

PowerPoint Review

 

DAY #8

The Judiciary and the Welfare State (1900-1937) --part 2 of 2 [54 pp.]

Today is the deadline for Case Brief #1

Powers of the National Government in the Federal System

  • Federal Police Power 287-288 [287-288]
  • Champion v. Ames (1903) 288-293 [288-293]
  • Taxing and Spending Power 341-342 [344-345]
  • McCray v. United States (1904) 342-345 [346-349]
  • Houston, E. & W. Texas Railway Co. v. United States (1914) 286-287 [286-287]
  • Hammer v. Dagenhart (1918) 304-308 [309-314]
  • Stafford v. Wallace (1922) 284-286 [283-286]
  • The Rise of Dual Federalism 345 [349]
  • Bailey v. Drexel Furniture Co. (1922) 345-347 [349-352]
  • Note on Brooks v. United States (1925) 292 [293-294]
  • Carter v. Carter Coal Co. (1936) 308-314 [314-320]
  • United States v. Butler (1936) 347-352 [352-358]
  • Economic Regulation in the New Deal Era (Table of Cases)
  • Membership of the U.S. Supreme Court, 1932-1936

The Regulatory Power of the States in the Federal System

  • Regulatory Power of the States: Police Power 364-365 [370-371]
  • Jacobson v. Massachusetts (1905) 365-367 [371-374]

Property Rights and Economic Liberties

  • Lochner v. New York (1905) 440-444 [455-460]
  • Muller v. Oregon (1908) 445-446 [460-462]
  • Note on Adair v. United States (1908) and Coppage v. Kansas (1915) 439-440 [454-455]
  • Home Building & Loan Association v. Blaisdell (1934) 421-425 [432-438]

PowerPoint Review

DAY #9

The Modern Court (1937-1953) [51 pp.]

Executive Power

  • Korematsu v. United States (1944) 201-209 [185-195]
  • Youngstown Sheet & Tube Co. v. Sawyer (1952) 209-217 [195-205]

Powers of the National Government in the Federal System

  • The Decline of Dual Federalism 314-316 [320-323]
  • National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937) 316-323 [323-330]
  • The Decline of Dual Federalism 353 [358-359]
  • Steward Machine Co. v. Davis (1937) 353-358 [359-364]
  • Note on United States v. Darby (1941) 323-324
  • Wickard v. Filburn (1942) 324-327 [334-337]

The Regulatory Power of the States in the Federal System

  • Interstate Movement of Persons 389 [399]
  • Edwards v. California (1941) 390-393 [400-403]

Property Rights and Economic Liberties

  • The End of Liberty of Contract 446-447 [462-463]
  • West Coast Hotel Co. v. Parrish (1937) 447-449 [463-465]

PowerPoint Review

DAY #10

The Warren Court (1953-1969) [58 pp.]

Judicial Power 12

  • Political Questions 57-60 [59-62]
  • Baker v. Carr (1962) 60-68 [62-71]

Legislative Power 24

  • Note -- The Proposed Bricker Amendment (1954) 127-128 [104-105]
  • Amendment Enforcing Powers 113 [89]
  • South Carolina v. Katzenbach (1966) 113-119 [89-96]
  • The Power to Investigate 153-154 [132-133]
  • Investigations and the First Amendment 154-155 [133-134]
  • Note -- Watkins v. United States (1957) & Barenblatt v. United States (1959) 155-161 [134-149]
  • Court-Curb Proposals Stimulated by Controversial Decisions 161-164
  • Gibson v. Florida Legislative Committee (1963) 164-168

Powers of the National Government in the Federal System 19

  • Commerce Power and Racial Discrimination 293-294 [295-296]
  • Heart of Atlanta Motel v. United States (1964) 294-297 [296-300]
  • Katzenbach v. McClung (1964) 297-300 [300-303]
  • Note on Daniel v. Paul (1969) 300-301 [303-304]

Property Rights and Economic Liberties 2

Note on City of El Paso v. Simmons (1965) 425-426 [438-440]

PowerPoint Review

DAY #11

The Burger Court (1969-1986) -- part 1 of 3 [34 pp.]

Judicial Power 19

  • Note -- Mootness: DeFunis v. Oregon (1974) and Sosna v. Iowa (1975) 43-44 [44-45]
  • Note -- Goldwater v. Carter (1979) 75-77 [75-77]
  • The Debate over Justiciability 77 [77]
  • Standing 46-47 [47]
  • Allen v. Wright (1984) 47-54 [48-55]
  • Note -- City of Los Angeles v. Lyons (1983) 54-56 [55-57]
  • Note -- Do Federal Taxpayers as Such Have Standing to Sue? 56-57 [57-59]

Legislative Power 15

  • Economic Stabilization Act of 1970 133-136 [110-113]
  • Immigration & Naturalization Service v. Chadha (1983) & related materials 136-144 [113-122]
  • Note -- Bowsher v. Synar (1986) 144-146 [122-123]
  • The Speech and Debate Clause 173-175 [155-158

PowerPoint Review


  • DAY #12

    The Burger Court (1969-1986) -- part 2 of 3 [51 pp.]

    Executive Power (The Nixon Fiasco) 51

    • The Power to Use Military Force 260-261 [257]
    • Note -- War Powers Resolution (1973) 261-264 [258-261]
    • Presidential Powers under Nixon 217-218 [205-206]
    • Note -- The Nixon-Frost Interview (1977) 218-221 [206-207]
    • Executive Privilege 221 [210-211]
    • United States v. Nixon (1974) 222-231 [211-217]
    • Liability of the President for Damages 235-236 [240-241]
    • Nixon v. Fitzgerald (1982) 236-242 [241-247]
    • Note -- Settlement of the Iranian Hostages Crisis (1981) 253-254 [251-252]

    PowerPoint Review


    DAY #13

    The Burger Court (1969-1986) -- part 3 of 3 [37 pp.]

    The Regulatory Power of the States in the Federal System 26

    • Dormant Commerce Clause: Truck & Train Cases 395-397 [406-409]
    • Kassel v. Consolidated Freightways Corp. (1981) 397-404 [409-416]
    • City of Philadelphia v. New Jersey (1978) 404-410 [416-422]
    • Federal Preemption and Federal Dictation 367-369 [374-375]
    • Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission (1983) 369-374 [376-382]

    Property Rights and Economic Liberties 11

    • City of New Orleans v. Dukes (1976) 450-452 [466-468]
    • Note -- Minnesota v. Clover Leaf Creamery Co. (1981) 452 [468]
    • The Regulation and Taking of Property 452-453 [469]
    • Penn Central Transportation Co. v. City of New York (1978) 453-460 [469-477]

    PowerPoint Review


    DAY #14

    The Rehnquist Court (1986-present) -- part 1 of 3 [23 pp.]

    Judicial Power 2

    • Ripeness 44-45 [45]
    • National Treasury Employees Union v. United States (1996) [U.S.C.A., D.C.] 45-46 [45-47]
    • Judicial Federalism 410-412

    Legislative Power 21

    • City of Boerne v. Flores (1997) 119-123 [95-100]
    • Note -- Mistretta v. United States (1989) 146-147 [124-125]
    • Clinton v. City of New York (1998) 147-153 [125-132]
    • Immunity 168-169 [149-151]
    • United States v. North (1990) [U.S.C.A., D.C.] 169-173 [151-155]

    PowerPoint Review


    DAY #15

    The Rehnquist Court (1986-present) -- part 2 of 3 [39 pp.]

    Tomorrow is the deadline for Case Brief #2

    Executive Power (The Clinton Fiasco) 39

    • Morrison v. Olson (1988) 185-191 [169-178]
    • Dellums v. Bush (1990) [U.S.D.C., D.C.] 264-268 [262-266]
    • Note on War Powers 268-271 [266-269]
    • In Re Sealed Case (1997) [U.S.C.A., D.C.] 217-226
    • The Attorney-Client and Protective Function Privileges 231-233 [226-236]
    • The Clinton Impeachment 233-235 [236-240]

    Oral Argument #1: United States v. Alvarez-Machain (1992)
    Curtis Hames v. Blake Rasmussen

    DAY #16

    The Rehnquist Court (1986-present) -- part 3 of 3 [37 pp.]

    Today is the deadline for Case Brief #2

    Powers of the National Government in the Federal System 12

    • South Dakota v. Dole (1987) 358-363 [364-369]
    • Dual Federalism Rekindled 328 [337-338]
    • United States v. Lopez (1995) 328-332 [338-344]
    • United States v. Morrison (2000) 332-339
    • The Eleventh Amendment 339-341

    The Regulatory Power of the States in the Federal System 17

    • New York v. United States (1992) 374-382 [382-390]
    • Printz v. United States (1997) 382-389 [390-399]

    Property Rights and Economic Liberties 8

    Oral Argument #2: Camps, Inc. v. Town of Harrison (1997)
    Teri Carrigan v. Sarah Sander

    DAY #17

    The Future of the Court and the Constitution [24 pp.]

    A chance to catch up, reflect on the past, and speculate about the future. Pretty clearly it does make a difference who nominates the next justices!

    • Craig Ducat, "Modes of Constitutional Interpretation" 79-103 [E1-E16]

    Oral Argument #3: Federal Maritime Commission v. South Carolina State Ports Authority (2002)
    Jillian Johnsen v. Steve Wieland

    PowerPoint Review



    DAY #18

    Final Examination

    Traditionally, the exam begins at 7:00 a.m.

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