AMERICAN CONSTITUTIONAL LAW       

Po 332        4 CREDITS        FALL 2008

 

 

 

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, 3^rd edition (herein as ACI)

by Walter Murphy, James Fleming, Sotirios Barber &Stephen Macedo)

 

          Terrorism and the Constitution: the Post-9/11 Cases, by H. L. Pohlman

 

You should waste no time in purchasing books and beginning the assignments outlined below.  A few assignments will be found on my web site or on other web sites.  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 during reasonable hours.  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
                   Exploring Constitutional Law: Introduction

 

 

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

Buck v. Bell, pg. 1376-1379

Griswold v. Connecticut, pg. 158-169

Roe v. Wade, pg. 1381-1394  

 

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

Marsh v. Chambers

Planned Parenthood v. Casey, pg. 1404-1437

                    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

 

SECOND EXAMINATION!

 

 

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. 448-453