AMERICAN CONSTITUTIONAL LAW     Po 332     FALL 2012     MWF 12:15-1:20

This syllabus may also be accessed at: 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 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, 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,  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.  Oh, and no cell phones anywhere in sight during exams!






I.          The Problem


A.        Following Rules Laid Down


ACI ch. 1, pg. 1‑21

Exploring Constitutional Law: Intro


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

Buck v. Bell, ACI, pg. 1449-1452 (1376-1379)

Griswold v. Connecticut, ACI, pg. 167-178 (158-169)

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 )

U.S. Constitution, Art V, ACI, pg. 1708 (1610)

Exploring Constitutional Law: Art. V

Some Proposed Constitutional Amendments

Harper v. Virginia State Board of Elections, ACI, pg. 243-248 (238-243)

Marsh v. Chambers

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)

Exploring Constitutional Law: Originalism v. Non-Originalism






III.       WHO May Authoritatively Interpret the Constitution For the National Government?


A.        ACI ch. 7, pg. 281-296 (272-286)

U.S. Constitution, Art. III, ACI, pg. 1706-1707 (1608-1609)

Letters of Brutus # 11, ACI, pg. 305-309 (295-299)

Federalist # 78, ACI, pg. 309-312 (299-303)

Ranking the Politics of Supreme Court Justices  

Measuring the Roberts Court  

Marbury v. Madison, ACI, pg. 322-329 (312-320)

Exploring Constitutional Law: Judicial Review

Jefferson replies, ACI, pg. 329-331 (320-322)

Lincoln replies, ACI, pg. 337-341 (328-332)

Roosevelt replies, ACI, pg. 342-346 (332- 337)

The Legal Significance of Presidential Signing Statement, ACI pg. 367-372

Eakin v. Raub, ACI, pg. 332-336 (322-326)

Political Questions

Exploring Constitutional Law: The Cases or Controversies Requirement


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

McColluch v. Maryland, pg. 589-601 9563-575)

                        Gibbons v. Ogden, pg.  617-623 (591-597)

U.S. v. E. C. Knight

Hammer v. Dagenhart

                        U.S. v. Darby, pg. 624-628 (597-6

Wickard v. Filburne

                        Gonzales v. Raich, ACI 693

                        Patient Protection & Affordable Health Care Act (2009)

                        National Federation of Businesses v. Sibelius

                        From “Off the Wall” to “On the Wall”



B.        The Separation of Powers


ACI ch. 10, pg. 464-469 (448-453)

U.S. Constitution, Arts. I, II, ACI, pg. 1699-1706 (1601-1608)

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)

U.S. v. Curtiss-Wright, ACI, pg. 481-483 (464-466)

Youngstown v. Sawyer, ACI, pg. 484-494 (466-477)

The War Powers Resolution of 1973, ACI, pg. 494-498 (478-482)

The Illegal War in Libya   

President’s Perspective  

Harold Koh Appears Before Senate Committee





C.        The “War on Terrorism “and the “Unified Executive”


Jennifer Von Bergan,The Theory of the Unitary Executive


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)

Rethinking the Authorization for Use of Military Force


2.         Habeas Corpus


ex parte Merryman, ACI, pg. 1631-1635 (1534-1538)

Lincoln’s Message to Congress, ACI, pg. 1635-1638 (1538-1540)

Korematsu v. United States, ACI, pg. 1645-1653 (1548-1557)


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)

Ex parte Quirin  

Hamdi v. Rumsfeld ACI pg. 510-536

Combat Status Review Boards


5.         External Authority, Foreign Nationals


In re Yamashita

Hamdan v. Rumsfeld,

The Military Commission Act (2006)

Obama’s Views on His War Powers



V.             Constitutionalism, Democracy and the Future of Judicial Review?


Democracy v. Judicial Review

U. S. v. Caroline Products, footnote # 4, ACI, pg. 725-726 (686-87)

Loving v. Virginia, ACI, pg. 986-990 (948-952)

Lawrence v. Texas, ACI, pg. 1532-1552 (1461-1481)

DeShaney v. Winnebago County Social Services, pg. 1608-1615 (1513-1520)

Michael H. v. Gerald D., ACI, pg. 178-187 (169-178)