AMERICAN CONSTITUTIONAL LAW Po 332 FALL 2012 MWF 12:15-1:20
This syllabus may also be accessed at: http://academics.smcvt.edu/jhughes/conlawsyl.htm or on eCollege
American politics has always displayed a uniquely legalistic style.
As Alexis de Tocqueville noted a century and a half ago, in his great
unread classic, Democracy in
America, there is hardly a political issue of any importance for
Americans that sooner or later does not take on the trappings of a law
suit, to be settled in the courts. This is partially explained by
the fact that the
For reasons we will soon appreciate for their complexity (but alas, not for their clarity), our focus will be primarily on decisions by the United States Supreme Court. That Court has acquired a pre‑eminent role in the interpretation of our constitutional law. However, in recognition of the fact that the Court is not the exclusive expositor of constitutional values, we will also study some legislative pronouncements and some presidential theories on the Constitution. For whatever they are worth, some academic scribblings on the subject will be included as well.
The goal of this course is not the production of lawyers, but the education of literate citizens who understand the complexities of constitutional democracy. Consequently, the focus of this course will be a jurisprudential one. Instead of the traditional historical survey of doctrinal development in several areas (ie. judicial review, federalism, interstate commerce), we will be primarily concerned with how we go about interpreting the Constitution, and with the significance of the interpretive venture for our political life. This will involve a detailed examination of three interrelated questions:
1. What does "the Constitution" include?
2. Who shall authoritatively interpret its meaning?
3. How should "the Constitution" be construed?
The syllabus is built around these questions. It should be understood, however, that these are not mutually exclusive concerns. Each and every selection on the reading list will involve all three questions to some degree.
There will be several exams of the essay variety. It goes without saying that evidence of plagiarism or other forms of cheating on exams will be considered grounds for failure of the exam, and in flagrant cases, failure of the course.
Students will be allowed up to four unexcused absences for the semester. After the fourth absence, unless I have previously received some credible excuse of truly cosmic proportions, a penalty of one full letter grade will be imposed for each absence. Your attendance does matter! Furthermore, it will be expected that students will keep up on all assigned reading, and will come to class prepared to actively participate in class discussions. You may be called upon at any time to expound upon any of the assigned texts. .
Assigned texts include:
American Constitutional Interpretation, 4th edition (herein as ACI)
by Walter Murphy, James Fleming, Sotirios Barber &Stephen Macedo)
(note: use the 3rd edition if you already have it—pagination will be indicated in Italics)
You should waste no time in purchasing this rather expensive book and beginning the assignments outlined below. Additional assignments will be found on my web site or on other web sites—equally important! Follow the links from the on-line syllabus.
All exams in this course will be of the essay variety. They will be graded and returned as quickly as possible, within a week barring unusual circumstances. Grades in the A range will be awarded only for truly outstanding work. There will be no quota or imposed bell curve for class grade distribution. One class might attain a fair number of A grades while in other classes no such grades will be awarded. More typically, few such grades are awarded. Grades in the C range theoretically denote average work, but in practice average is now indicated by a B. A B+ denotes very good work; a B- indicates considerable room for improvement. Any grade below that should be understood as signifying substandard work. Assuming all assigned work has been completed and turned in on time, an F will require diligent commitment to failure.
I am available for consultation in my office, which in located in SE
346. As Mae West would say,
"Come up and see me sometime."
I can also be reached by telephone, ex. 2245, or at home 879-8370
during reasonable hours. The
best way to communicate with me is via e-mail (address:
jhughes, or from off campus,
Finally, please turn all cell phones and pagers OFF (not vibrate) while in class. Violators will be subject to public shaming. Oh, and no cell phones anywhere in sight during exams!
I. The Problem
A. Following Rules Laid Down
ACI ch. 1, pg. 1‑21
B. Values in Conflict: Constitutionalism v. Democracy
ACI ch. 3, pg. 45-78 (43-74)
ACI ch. 4, pg. 84-107 (79-98)
II. WHAT is "the Constitution"?
A. The Problem of Inclusion
ACI ch. 5, pg. 126-139 (118-130)
Calder v. Bull, ACI, pg. 143-147 (134-138)
Jacobson v. Massachusetts
Roe v. Wade, ACI, pg. 1453-1465 (1381-1394)
Cruzan v. Missouri Dept. Human Services, ACI, pg. 1577- 1588 (1482-1493)
C. The Problem of Continuity v. Change
ACI ch. 6, pg. 200-212 (191-203 )
Planned Parenthood v. Casey, ACI, pg. 1476-1508 (1404-1437)
William Rehnquist, "The Notion of a 'Living Constitution'," ACI, p. 262-267 (256)
Ronald Dworkin, "Taking Rights Seriously," ACI, p. 261-270 (256)
III. WHO May Authoritatively Interpret the Constitution For the National Government?
A. ACI ch. 7, pg. 281-296 (272-286)
Letters of Brutus # 11, ACI, pg. 305-309 (295-299)
Federalist # 78, ACI, pg. 309-312 (299-303)
Jefferson replies, ACI, pg. 329-331 (320-322)
The Legal Significance of Presidential Signing Statement, ACI pg. 367-372
Eakin v. Raub, ACI, pg. 332-336 (322-326)
IV. HOW Should the Constitution be Interpreted?
A. Federalism, Commerce and the Affordable Health Care Act
The Structure of Federalism, ACI, pg. 572-583 (547-55
Wickard v. Filburne
Gonzales v. Raich, ACI 693
B. The Separation of Powers
ACI ch. 10, pg. 464-469 (448-453)
Federalist # 51, ACI, pg. 472-475 (455-458)
1. Executive War Powers
Little v. Barreme, ACI, pg. 475-477 (458-460)
The Prize Cases, ACI, pg. 478-480 (461-464)
The War Powers Resolution of 1973, ACI, pg. 494-498 (478-482)
Jennifer Von Bergan,The Theory of the Unitary Executive
1. The President Acts:
2. Habeas Corpus
ex parte Merryman, ACI, pg. 1631-1635 (1534-1538)
3. Tribunals in international law: The Geneva Conventions of 1949
Convention (III) Relative to the Treatment of Prisoners of War What is an ‘Unlawful Combatant’ and Why it Matters
4. Internal Authority, U.S. Citizens
Amendments V, VI, ACI, pg. 1708-1709 (1612)
ex parte Milligan, ACI, pg. 1638-1645 (1541-1546)
Hamdi v. Rumsfeld ACI pg. 510-536
5. External Authority, Foreign Nationals
The Military Commission Act (2006)
V. Constitutionalism, Democracy and the Future of Judicial Review?
U. S. v. Caroline Products, footnote # 4, ACI, pg. 725-726 (686-87)
Michael H. v. Gerald D., ACI, pg. 178-187 (169-178)
FINAL EXAM AND TEARFUL FAREWELL