Pol 339: American Constitutional Law Fall 2010: Syllabus



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POL 339: American Constitutional Law

Fall 2010: Syllabus




Instructor: Dr. David Ryden

Office: Lubbers 205

Telephone: 395-7546

E-mail: ryden@hope.edu

Office Hours: Tuesdays 11:00-11:45 a.m., Tuesdays and Thursdays 3:00-4:00 p.m., or by appointment




What is this course about? Why take it?
The U.S. Constitution occupies a special place in the hearts and minds of Americans, at least according to the polls. While we are increasingly cynical about American politics, and often hold our public officials in low regard, we tend to have a special reverence for the Constitution. This is a good thing, since the Constitution is the basic foundation for the protection of our liberal democracy. It is the governing document for our political system. Yet the reverence is attributable more to myth than reality, since most Americans know precious little about what the Constitution actually says or means. This course is designed to rectify that shortcoming. It will introduce the student to the substance of the Constitution, what it means, and how we determine or interpret what it means.
The Constitution is by no means a finished product. Rather it is an elastic document that must be interpreted to apply to new circumstances and questions. Its meaning is a reflection of our effort to resolve the conflicts and conditions that we face in our lives personally and collectively, as we apply constitutional principles of liberty, equality, and order to our political, economic, and social activities. Our goal in this course is not only to understand the features of the Constitution, but also to appreciate constitutional law and politics as an ongoing process of interpreting and applying the Constitution to our lives, our society, and our politics.
One main focus of the course is on Supreme Court decisions and opinions; we will spend a good deal of our time reading, thinking about, and dissecting the key decisions that have shaped and directed constitutional law in America. This means analyzing, weighing, and debating the reasoning, logic, and wisdom of the opinions. As we do so, you should be mindful of several things. One is the set of factors and pressures that go into the decision. We tend to think of the courts and the legal process as unbiased and objective, as somehow above politics and the pressures of public opinion. The U.S. Supreme Court’s decision in Bush v. Gore that effectively ended the 2000 presidential election was the most dramatic illustration that this is not so! Nine unelected justices with life tenure in Washington, D.C. render decisions affecting basic, fundamental question in society (the right to die, abortion, in what ways can the state regulate and restrict my life and liberty, the role of religion in public life, and so on). As we study the cases, be mindful of the political nature of the courts and judges. What is the Court’s proper place and role in American democracy? How does one explain it in a democratic government based on consent of the people? What are the host of political pressures that influence the judiciary at various points in the legal system, from the courts’ formation to their decision-making, to other critical points in between?
Another fundamentally important question is that of constitutional interpretation and construction. In many cases, the constitutional text itself is maddeningly ambiguous, and offers little guidance in how to resolve contemporary issues that extend far beyond the framers’ collective looking glass. In such cases, easy invocation of judicial restraint or original intent rarely gets us very far. Should the justices simply decide not to decide in such cases? Should they just defer to the democratically elected branches of government? If they do act, how do they apply vaguely worded constitutional phrases? How do the constitutional structure and text maintain their relevance in current settings? Hopefully we can get a sense of the complexities of the art of constitutional interpretation, and the role played by notions of democratic traditions, precedent, personal judicial philosophies, constitutional values, and more.
Finally, we should always be aware of the stark consequences of constitutional decisions for society. Law is everywhere, in our lives and in our society. It is a dominant force in our culture. Each of us is likely to feel the heavy hand of the law in one form of another at some point in our lives. Our focus in this course is on the individual rights and freedoms enumerated in the Bill of Rights, the government’s authority to limit those freedoms, and the consequences for us and the general good of society. As we proceed, think about the circumstances under which it is right for the government to limit personal freedoms. Should the Supreme Court be the one to decide how far governments can or cannot go, as opposed to the legislature? How does the protection of rights square with policy making? Is the Court clear and sensible in how it approaches these questions?

What are the course objectives?
By the completion of this course, you should:


  1. be familiar with the basic legal standards, concepts, and terminology pertaining to constitutional practice;

  2. have a basic understanding of the constitutional law of civil rights and liberties, know the competing arguments and perspectives relating to the law in these areas, and have a grasp of the contemporary issues, controversies, and debates surrounding civil rights and liberties;

  3. have a grasp of the political dimensions surrounding the Supreme Court and constitutional decision making;

  4. have a general understanding of the various methods or philosophies which judges and justices employ to interpret and apply the U.S. Constitution;

  5. be better able to read and comprehend, analyze and assess, discuss, and offer your own judgments and opinions on constitutional questions;

  6. have a general understanding of the constitutional principles of federalism, separation of powers, checks and balances, and congressional power; and

  7. have honed your skills in speaking, writing, research, and analytical/logical thinking.



What are the readings for the course?




To analyze cases and opinions of the court, we will primarily rely on Epstein and Walker’s Constitutional Law for a Changing America: Rights, Liberties, and Justice.

Optional but highly recommended – Richard Fallon’s The Dynamic Constitution: An Introduction to American Constitutional Law. This book is extremely useful or background and to fill in gaps from the casebook.


I also am sure to distribute articles, discussion sheets, case summaries, and other handouts throughout the semester, and would recommend a three-ringed binder to keep track of these.



What assignments, projects, and other work does this course require?
1. Exams. There will be two examinations during the semester. The midterm exam is tentatively scheduled for Thursday, October 14th, and the final exam is on Thursday, December 16th. The exams will be a combination of essays, short answer, and identification of terms and concepts.

2. Paper. Each of you will be responsible for writing a research paper on some aspect of constitutional law as it pertains to separation of powers and executive authority. More information will be forthcoming on the requirements of the paper, and possible topics from which to choose. The papers are due by Tuesday, Nov. 9.


3. Quizzes and in-class activities. To help provide the requisite motivation to stay up on the readings, you can count on periodic quizzes and other in-class activities. These will vary in format (T/F, multiple-choice, short answer). I might simply ask you to brief a case for the day. In-class activities include mock debates, small group discussions and presentations, and the like.
4. Moot Court Simulation. Everyone will participate in a moot court simulation of a case involving some issue of contemporary import. Each of you will occupy a particular role in the proceedings (judge, attorney, “friend of the court”). There will be some legal research involved (for which you will be given some guidance), as well as a written and oral component of your participation. More information will follow during the semester.
5. Briefing cases. It is highly recommended that you brief the assigned cases in preparation for class, as this will invaluably participating in class discussion of the cases. The briefs will also give you a permanent record to which to refer, and to help you study for the exams. There are different ways to brief, but precisely how you brief is up to you. I have included guidelines on how to brief a case below. I reserve the right to periodically check to see if you are briefing for class.

How will I be graded?
The approximate value of the course requirements are as follows:
First Exam 20%

Final Exam 25%

Research Paper 15%

Supreme Court simulation 10%

Quizzes, in-class activities 15%

Classroom attendance, preparation, and participation 15%


I grade using a point system. Each of the assignments will have a maximum point value. Your grade for each assignment will be a point score rather than a letter grade. At the end of the semester, your total points will be translated into a letter grade. The scale is as follows:
A = 93-100% A- = 90-92 B+ = 87-89

B = 83-86 B - = 80-82 C+ = 77-79

C = 73-76 C- = 70-72 D+ = 67-69

D = 63-66 D- = 60-62


I reserve the right to use a curve if necessary to ensure the grading is accurate and fair. The point system puts a premium on staying up with assignments, doing your work, and coming to class. Your grade will suffer substantially if you miss an entire assignment.
Discussion sessions: Invariably some students struggle with understanding the reasoning and language of the Supreme Court in its opinions. In the past, I’ve had tutors available for those who felt they needed one-on-one assistance. In lieu of that, I encourage you to think about forming small study groups with whom you can meet on an as-needed basis to discuss cases and answer questions that may arise.

What does Dr. Ryden expect of me?
Class attendance and participation - Thorough preparation for class, regular attendance, and active participation in class are expected from everyone. Note that participation, quizzes, and in-class activities make up a significant portion of your grade. This means you must come to class, be prepared, and take an active part in what goes on. Class discussion and interaction are central to this class, since I will often use the Socratic method of question-and-answer dialogue with class members. This means that the success of the course will depend in no small part on your preparedness for class and willingness to engage the material. If missing a class is unavoidable, you are responsible for finding out from a fellow class member what transpired in class (and getting notes, handouts, or assignments that may have been distributed).
Keeping up with current events – Our discussion of contemporary developments involving the Supreme Court will be helped immensely if each of you spends some time regularly following the news. Toward that end, I expect each of you to regularly read the news and op-ed pages of a good newspaper (Washington Post, New York Times, Wall Street Journal), as well as regular reading of at least one constitutional law blog. Reputable blogs are perhaps the best way to stay abreast of legal developments. Here are some possible blog sites:


  • The Volokh Conspiracy – http://volokh.com (my personal favorite)

  • Supreme Court of the United States Blog – http://www.scotusblog.com

  • Balkinization – http://balkin.blogspot.com

  • The American Constitutional Society blog – http://www.acsblog.org

  • Underneath Their Robes – http://www.underneaththeirrobes.blogs.com


Make-ups, incompletes and late papers - Unless or until scheduled deadlines are changed, all exams, papers, or other assignments are to be completed by the due date. Grades will be reduced for each day an assignment is late. Submission of a late paper is better than no paper at all, however. Exams must be taken when the rest of the class takes them. There will be no make-up of missed work or exams, unless I receive notice in advance of (1) your required attendance at or participation in a sanctioned college event or activity that conflicts with our class, or (2) a family or medical emergency documented by the Dean of Students or Health Clinic.
Cheating and Plagiarism - Cheating and plagiarism will absolutely not be tolerated. Any instance of cheating will result in an automatic zero for the assignment (no allowances, excuses, exceptions or negotiations whatsoever) and may result in automatic failure of the course. Ignorance is not a defense. If you are unclear as to what constitutes plagiarism or other violations of Hope College's honor code, please review the college catalog.
I always welcome, and indeed value, feedback, questions and comments from students regarding any subject or aspect of the course, either in the classroom or out. Please do not wait until the end of the semester to air grievances, express problems, or make suggestions. You should feel free to drop by and see me at my office at any time about anything class-related.


On-Line Sites and Resources: See Walker/Epstein pp. 41-44
http://www.supremecourtus.gov/

http://www.oyez.org/oyez/frontpage

http://supreme.lp.findlaw.com/

http://supct.law.cornell.edu/supct/index.html

http://www.scotuswiki.com


Briefing Cases
There is no single “best way” to brief a case. Feel free to adapt your own style or approach to whatever works best for you. Here are my suggestions, however.
Title: Give the name of the case, the citation, and perhaps circle the name of the party who won.
Facts: This is a short statement of the events or circumstances that led to the case or controversy. These should be limited to those facts relevant to the decision. Omit unnecessary facts or information.
Procedural History: This is a statement of how the case came to be before the Court. i.e. Who won at the lower court level, what was the holding, and who appealed?
Issue(s): What is the legal question that the court is trying to answer? This often is concisely stated by the court itself. Remember, the issues that come before the Supreme Court are questions of law, rather than factual questions. The issue usually is not whether someone was guilty or whether their rights were violated. It is whether the First Amendment free speech clause permits a certain governmental restrain or whether the Sixth Amendment right to counsel precludes police interrogation in certain circumstances.
Holding: This is the Court’s answer to the questions presented.
Reasoning: These are the reasons underlying the Court’s holding. This is the most important, and probably the longest, section of the brief. You should outline the reasoning point by point, to better scrutinize and analyze the opinion. Paraphrase and condense. Don’t use quotes. You should be able to answer why the court decided the way it did.
Separate Opinions: You should include a short summary of any dissenting or concurring opinions, to determine major conflicts or differences among the justices. Include the name of the justice authoring the opinion.
Comment or evaluation: Offer your personal evaluation of the case. This might include your view on its importance or how it relates to other cases studied. This is where you might offer special criticism or other comments on the court’s opinions as well.
Ringing Phrases: Are there any memorable quotes or phrases that leap off the page? If so, include them.


Class Schedule of Topics and Readings



Note: All listed cases should be briefed. Those in bold are likely to receive closer in-class attention.
Week 1 (Aug. 31 and Sept. 2) and Week 2 (Sept. 7 and 9)
I. Understanding the Court and the Constitution


    • An Overview (Fallon Prologue xv-xxi and Introduction 1-27)




    • The United States Constitution (E&W Appendix 1, 741-752)




    • The Living Constitution; How the Court operates (E&W 3-41)




    • Judicial Power and limits; judicial review (E&W 47-57; Fallon Ch. 9)

        • Marbury v. Madison




    • Readings on modes of judicial decision making (to be distributed in class)


Week 3 (Sept. 14 and 16) and Week 4 (Sept. 21 and 23)
II. Civil Liberties


    • The Free Exercise of Religion (Fallon Ch. 2; E&W 91-129)

        • Cantwell v. Connecticut

        • Sherbert v. Verner

        • Wisconsin v. Yoder

        • Employment Division v. Smith

        • City of Boerne v. Flores




    • Religious Establishment (E&W 129-171, 178-192)

        • Everson v. Bd of Education

        • Lemon v. Kurtzman

        • Agostini v. Felton

        • Zelman v. Simmons-Harris

        • Edwards v. Aguillard

        • Lee v. Weisman

        • Locke v. Davey (online)

        • Van Orden v. Perry

        • Hein v. Freedom from Religion Foundation (online)




    • Freedom of Speech, Assembly, Petition and Association: Standards (Fallon Ch. 1; E&W 193-221)

        • Schenck v. U.S.

        • Abrams v. U.S.

        • Gitlow v. New York

        • Dennis v. U.S.

        • Brandenburg v. Ohio


Week 5 (Sept. 28 and 30)


    • Free Speech and Regulation of Expression (E&W 221-254, 257-266, 270-274)

        • U.S. v. O’Brien

        • Texas v. Johnson

        • Cohen v. California

        • Hill v. Colorado

        • R.A.V. v. City of St. Paul

        • Tinker v. Des Moines

        • Morse v. Frederick

        • Rumsfeld v. Forum for Academic and Institutional Rights


Week 6 (Oct. 5 and 7) and Week 7 (Oct. 12 and 14)


    • Freedom of Association (E&W 283-289)

        • Boy Scouts of America v. Dale

        • Christian Legal Society v. Martinez (online)



    • Freedom of the Press (E&W 291-312)

        • Near v. Minnesota

        • New York Times v. U.S.

        • Hazelwood School District v. Kuhlmeier

        • Red Lion Broadcasting v. FCC




    • Obscenity (E&W 319-338)

        • Roth v. U.S.

        • Miller v. California

        • New York v. Ferber







    • 2nd Amendment Right to Bear Arms (E&W Ch. 9)

        • D.C. v. Heller

        • McDonald v. Chicago (online)




    • Economic Liberties (Fallon Ch. 3)

        • Kelo v. New London (online)



Mid-Term Exam to be held on Thursday, October 14

Week 8 (Oct. 21 -- No class on Oct. 19 for Fall Recess) and Week 9 (Oct. 26 and 28)
III. The Right of Privacy (Fallon Ch. 6; E&W 385-439)

        • Griswold v. Connecticut

        • Roe v. Wade

        • Planned Parenthood v. Casey

        • Gonzales v. Carhart (online)

        • Lawrence v. Texas

        • Cruzan v. Director, Missouri Dept of Health


Week 10 (Nov. 2 and 4)


  1. Rights of the Accused




    • 4th Amendment Search and Seizure; the exclusionary rule (E&W 443-472, 477-484, 489-497)

        • Katz v. U.S.

        • Illinois v. Gates

        • Mapp v. Ohio

        • Hudson v. Michigan




    • 5th Amendment and self-incrimination (E&W 497-517)

        • Escabedo v. Illinois

        • Miranda v. Arizona




    • The Right to Counsel (E&W 519-530)

        • Gideon v. Wainwright




    • 8th Amendment Cruel and Unusual Punishment (E&W 548-570)

        • Gregg v. Georgia

        • Atkins v. Virginia

        • Roper v. Simmons (online)


Research Papers due Tuesday, Nov. 9



Week 11 (Nov. 9 and 11) will be devoted to presentations and discussion on your research papers
Week 12 (Nov. 16 and 18) and Week 13 (Nov. 23 - No Class on Nov. 25 for Thanksgiving Break)
V. Civil Rights


    • Overview (E&W 577-584; Fallon Ch. 5)




    • Racial Discrimination (E&W 585-616)

        • Plessy v. Ferguson

        • Sweatt v. Painter

        • Brown v. Bd. of Education I and II

        • Swann v. Charlotte- Mecklenburg Bd. of Education

        • Parents v. Seattle

        • Loving v. Virginia




    • Sex/Sexual Orientation Discrimination (624-648)

        • U.S. v. Virginia

        • Rostker v. Goldberg

        • Romer v. Evans




    • Affirmative Action (659-687)

        • Regents of the Univ. of California v. Bakke

        • Adarand Contractors, Inc. v. Pena

        • Grutter v. Bollinger


Week 14 (Nov. 30 and Dec. 2)
VI. Voting and Representational Rights (Fallon Ch. 10)


    • The Supreme Court and Elections (E&W 690-697)

        • Bush v. Gore




    • Regulation of elections campaigns (711-718)

        • McConnell v. FEC

        • FEC v. Wisconsin Right to Life (online)

        • Citizens United v. FEC (online)




    • Political Representation (E&W 718-737)

        • Reynolds v. Sims

        • Miller v. Johnson




    • Voting rights (handouts)


Week 15 (Dec. 7 and 9) will be spent on a Supreme Court simulation and wrapping up the course.
Final examination will be held on Thursday, Dec. 16 at 3:00 p.m., as determined by the Office of the Registrar.

Reminders of key dates
Thurs. Oct. 14: Mid-term examination

Tues. Nov. 9: Research papers due

Tues. Dec. 7: Supreme Court Simulation

Thursday, Dec. 16 (3 p.m.): Final examination





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