AMERICAN CONSTITUTIONAL LAW
Po 332
4 CREDITS
FALL 2009
American politics has always displayed a uniquely legalistic style. As Alexis de Tocqueville noted a century and a half ago, in his 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 United States, in ways more intricate than any other nation to date, has sought to combine two conflicting ideals in its political practice: popular sovereignty, manifested in representative democracy, and constitutionalism, manifested in judicial review. The former ideal holds that the majority, through its elected representatives, should rightfully determine public policy. The latter holds that even popular government is limited by law, and that certain procedures for decision making may not be avoided and that certain substantive goals may not be pursued regardless of how much they may be desired by the governing majority. In this way, the power of the majority to control public life is qualified out of concern for the rights of minorities. Many of the most pressing issues in American politics raise profound questions of constitutional interpretation. How the United States pursues a reconciliation of these conflicting ideals of popular sovereignty and constitutionalism is the subject we will be studying. In particular, we will examine recent cases arising from the nation’s response to international terrorism, an area fraught with complexity and controversy.
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, 3rd edition (herein as ACI)
by Walter Murphy, James Fleming, Sotirios Barber &Stephen Macedo)
You should waste no time in purchasing this rather expensive book and beginning the assignments outlined below. A few assignments will be found on my web site or on other web sites—equally important! Follow the links from the on-line syllabus.
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. The best way to communicate with me is via e-mail. I check my e-mail several times a day, and once in the late evening, so if you have any questions on the reading, assignments, or other aspects of the class, send an e-mail. I will probably reply within a few hours, or by the next morning. I also frequently use e-mail to communicate with the class--say, for such items as schedule changes or guides to reading cases. You should check your own e-mail frequently. Any materials sent via email are assumed to have been read. (A special note to those who use an off-campus ISP: it is your responsibility to set your SMC email account to bounce emails to your ISP.) Finally, please turn all cell phones and pagers OFF (not vibrate) while in class. Violators will be subject to public shaming.
SYLLABUS
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. 43-74
ACI ch. 4, pg. 79-98
II. WHAT is "the Constitution"?
A. The Problem of Inclusion
ACI ch. 5, pg. 118-130
Calder v. Bull, pg. 134-138
Jacobson v. Massachusetts, pg., 138-141
Buck v. Bell, pg. 1376-1379
Griswold v. Connecticut, pg. 158-169
Roe v. Wade, pg. 1381-1394
Planned Parenthood v. Casey, pg. 1404-1437
C. The Problem of Continuity v. Change
ACI ch. 6, pg. 191-203
U.S. Constitution, Art V, pg. 1610
Exploring Constitutional Law: Art. V
Some Proposed Constitutional Amendments
Harper v. Virginia State Board of Elections, pg. 238-243
William Rehnquist, "The Notion of a 'Living Constitution'," p. 256-261
Ronald Dworkin, "Taking Rights Seriously," p. 261-270
Originalism v. Non-Originalism
FIRST EXAMINATION!
III. WHO May Authoritatively Interpret the Constitution For the National Government?
A. ACI ch. 7, pg. 272-286
U.S. Constitution, Art. III, pg. 1608-1609
Letters of Brutus # 11, pg. 295-299
Federalist # 78, pg. 299-303
Ranking the Politics of Supreme Court Justices
Marbury v. Madison, pg. 312-320
Exploring Constitutional Law: Judicial Review
Jefferson replies, pg. 320-322
Lincoln replies, pg. 328-332
Roosevelt replies, pg. 332- 337
Eakin v. Raub, pg. 322-326
Exploring Constitutional Law: Cases or Controversies
The “political question” doctrine, ACI pg. 284-286, especially Note # 21
IV. HOW Should the Constitution be Interpreted?
A. The General Problem
ACI ch. 9, pg. 389-436 (skip the Appendix)
B. The Separation of Powers
ACI ch. 10, pg. 448-45
U.S. Constitution, Arts. I, II, pg. 1601-1608
Federalist # 51, pg. 455-458
1. Executive War Powers
Little v. Barreme, pg. 458-460
The Prize Cases, pg. 461-464
U.S. v. Curtiss-Wright, pg. 464-466
Youngstown v. Sawyer, pg. 466-477
The War Powers Resolution of 1973, pg. 478-482
SECOND EXAMINATION!
Jennifer Von Bergan, The Theory of the Unitary Executive
David Cole: “What Bush Wants to Hear” (scroll down to Cole’s article)
Video: Chaney’s Law
1. The President Acts:
Authorization for the Use of Military Force, Sept. 18, 2001
Executive Order for the Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism (November 13, 2001)
Michelle J. Kinnucan, “Rethinking the Authorization for Use of Military Force”
2.
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” by Michael Dorf
3. Case Law: Internal Authority, U.S. Citizens
Amendments V, VI, ACI, pg. 1612
ex parte Merryman, Pg. 1534-1538
Lincoln’s Message to Congress, pg. 1538-1540
ex parte Milligan, pg. 1541-1546
Korematsu v. United States, pg. 1548-1557
4. Case Law: External Authority, Foreign Nationals
The Military Commission Act (2006)
5. Interrogations, Torture, Signing Statements
U.S. Constitution: Amendment 4, 5 & 8
Geneva Conventions, Common Article III
U.N. Convention against Torture or Other Cruel, Inhuman, or Degrading Treatment or Punishment
War Crimes Act (1996)
Memorandum of Jay S. Bybee, OLC, to Alberto Gonzales Whitehouse Accusations against Saddam Hussein
Executive Order: Interpretation of the Geneva Conventions Common Article 3
Detainee Treatment Act (2005)
Presidential Signing Statement on the National Defense
Authorization Act for FY 2006 (McCain Amendment)
Note on Presidential Signing Statements
6. Surveillance
Amendment IV, ACI, pg. 1612
United States v. U.S. District Court
Foreign Intelligence Surveillance Act FAQ http://w2.eff.org/Censorship/Terrorism/fisa_faq.html
V. Constitutionalism, Democracy and the Future of Judicial Review
James B. Thayer, “The Origins and Scope of the American Doctrine of Constitutional Law, pg.672-678
U. S. v. Caroline Products (1938), Footnote # 4, pg. 686-87
Loving v. Virginia, (1967) pg. 948-952
Bowers v. Hardwick (1986), pg. `445-1461
Lawrence v. Texas, (2003) pg. 1461-1481
DeShaney v. Winnebago County Social Services (1989) pg. 1513-1520
Michael H. v. Gerald D., (1989) pg. 169-178
FINAL EXAM AND TEARFUL FAREWELL