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POS 4603: Honors Constitutional Law I
Fall 2011
MW 4-5:20 in WB 105
Description: Close reading of important Supreme Court opinions concerning federalism, property rights, the right to bear arms, and substantive and criminal due process. Special attention will be given to theories of how the constitution's text is to be interpreted, to the role the Court has played in the political and economic development of the United States, and to political theories addressing the proper role of government and courts in a democratic society. Students will participate in an in-class moot court.
Requirements: Class will combine lecture and discussion and it is important for students to come to class prepared to discuss the cases scheduled for that meeting. You should outline the cases--you will be permitted to use the outlines you authored on exams. Grades are based on a midterm (25%), final exam (40%), moot court brief/opinion (25%), and class participation (10%). The participation grade will be reduced 1/3 letter for each unexcused absence beyond 2.
Reading: All cases are available at Blackboard in a folder marked "Course Readings." Other readings are either at blackboard (BB) or online. A paperback edition of the U.S. Constitution is available for purchase at the bookstore. Reading listed under each class is to be done prior to that class meeting. All cases are to be briefed. A sample brief is online.
For those interested, unedited versions of cases are available online using westlaw (preferred) or lexis-nexis--access these via the FAU library database. To access these databases off-campus you must create a proxy. Supreme Court Oral Arguments are available for many of the cases since the 1960s. 'Garraty' refers to John Garraty's Quarrels that have shaped the Constitution, which is on reserve in the library. Also, C-SPAN has interviews with Supreme Court Justices, online.
Office Hours: Before or after class, or drop by HC 133--no appointment is needed. I can also be reached by phone (799-8670), or email (tunick@fau.edu).
Class meets in WB105 on MW 4-5:20.
Honor Code: Students are expected to adhere to the honor code, http://www.fau.edu/divdept/honcol/academics_honor_code.htm
8/22 Introduction
I. The Constitution and federalism: The constitution as establishing federal (national) powers, and setting limits both to federal and state powers.
A. Overview
8/24 Reading: U.S. Constitution and Amendments; Civil Rights Cases, 109 U.S. 3 (1883); sample brief (online)
Recommended Reading: "Case of the Prejudiced Doorkeeper," in Garraty.
8/29 Rdg: Shelley v Kraemer, 334 U.S. 1 (1948); NRA v City of Chicago, 567 F.3d 856 (7th Cir 2009)(effectively overturned in McDonald v. Chicago, to be read later in the semester); The Articles of Confederation (online).
For those interested: Eric Lichtblau, “Radio Host is Arrested in Threats on 3 Judges,” New York Times, June 24, 2009.
B. Judicial Review: The role of courts in enforcing the Constitution
8/31 Rdg: Marbury v. Madison, 5 U.S. 137 (1803)
Recommended reading: "The Case of the Missing Commission," in Garraty, ch. 1.
9/5 No Class
C. Theories about how to interpret the text of the Constitution
9/7 Rdg: McCulloch v. Maryland, 17 U.S. 316 (1819); Scalia, "Originalism: The Lesser Evil" (BB); Brennan, "The Constitution of the U.S.: Contemporary Ratification"(BB); Dworkin, Taking Rights Seriously excerpt (BB).
Recommended Reading: "The Bank Cases," in Garraty.
II. Executive Powers
9/12 Rdg: Youngstown Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579 (1952); U.S. v. Curtiss-Wright, 299 U.S. 304 (1936)
Recommended reading: "The Case of the Smuggled Bomber," in Garraty, ch. 15.
For those interested: President Obama's use of signing statements (NYT August 9, 2009)
III. The commerce clause as granting federal powers and limiting state powers
A.
Commerce Clause as granting National legislative power
9/14 Rdg: Gibbons v. Ogden, 22 U.S. 1 (1824); Champion v. Ames (Lottery Case), 188 U.S. 321 (1903)
Recommended reading: "The Steamboat Case," in Garraty ch. 4.
For those interested: Rapanos v. U.S. (547 U.S. 715, 2006): Does Congress's Clean Water Act apply to wetlands not directly connected to navigable waters?
9/19 Rdg: Hammer v. Dagenhart, 247 U.S. 251 (1918); Carter v. Carter Coal Coal, 298 U.S. 238 (1936); Kidd v. Pearson, 128 U.S. 1 (1888)
For those interested: Leisy v. Hardin, 135 U.S. 100 (1890)(striking down Iowa law prohibiting importation of liquor); and Wilkerson v. Rahrer, 140 U.S. 545 (1891)(upholding Congress's "local option" law allowing states to subject imported liquor to domestic liquor laws).
9/21 Rdg: Background to NLRB (BB); NLRB v. Jones and Laughlin, 301 U.S. 1 (1937); U.S. v. Darby, 312 U.S. 100 (1940); Wickard v. Filburn, 317 U.S. 111 (1942)
9/26 Rdg: Heart of Atlanta Hotel v. U.S., 379 U.S. 241 (1964); United States v. Lopez, 514 US 549 (1995)
For those interested: Does the commerce clause authorize Congress to enact laws against prostitution, or immoral acts that are not commercial transactions? See the amended version of the Mann Act. An earlier version, the "White Slave Traffic Act," was upheld in Caminetti v. United States, 242 U.S. 470 (1917).
9/28 Rdg: Florida v U.S. Dept of Health and Human Services, 2011 WL 285683 (N.D. Fla. 2011); Thomas More Law Center v. Obama (6th Circuit, 2011)
For those interested: Fallbrook Irrigation District v. Bradley, 164 U.S. 112 (1896)(assigned for 11/2) .
B. Commerce Clause as constraining State legislative power (the dormant commerce clause)
10/3 Rdg: South Carolina v. Barnwell, 303 U.S. 177 (1938); Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945); Baldwin v. GAF Seelig, 294 U.S. 511 (1935)
10/5 Rdg: Dean Milk v. Madison, 340 U.S. 349 (1951); Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959); Philadelphia v. New Jersey, 437 U.S. 617 (1978); Maine v. Taylor, 477 U.S. 131 (1986)
For those interested: Granholm v. Heald, 544 U.S. 460 (2005)(BB)
10/6: Optional Review session
10/10 Mid-term
III. Constitutional Limits on Government powers
A.
Substantive Due process
Economic Substantive Due Process or, 'The Constitution and Capitalism'
10/12 Rdg: Slaughterhouse Cases, 83 U.S. 36 (1873)
10/17 Rdg: Lochner v. New York, 198 U.S. 45 (1905); Nebbia v. New York, 291 U.S. 502 (1934); Skinner v. Oklahoma, 316 U.S. 535 (1942)
For those interested: "Limits on Truckers' Work Hours," New York Times, July 25, 2007 (BB)
Non-Economic Substantive Due Process and the right to privacy understood as autonomy
10/19 Rdg: Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973)
Recommended Reading: "The Abortion Case," in Garraty.
10/24 Rdg: Planned Parenthood v. Casey, 505 U.S. 833 (1992); Gonzalez v. Carhart, 550 U.S. 124 (2007)
For those interested: New York Times article on move for state amendments to establish that life starts at conception (10/26/2011).
B. 2nd Amendment 'right to bear arms'
10/26 Rdg: Presser v. Illinois, 116 U.S. 252 (1886); Silveira v. Lockyer, 312 F. 3d 1052 (2003)
10/31 Rdg: D.C. v. Heller, 554 U.S. 570 (2008); McDonald v. Chicago, 130 S. Ct. 3020 (2010)
C. The right to private property and the Takings Clause
11/2 Police Powers to Regulate
Rdg: Munn v. Illinois, 94 U.S. 113 (1876); Fallbrook Irrigation District v. Bradley, 64 US 112 (1896)
11/7 Police Powers to Regulate (continued); introduction to the Takings Clause
Rdg: Block v. Hirsh, 256 U.S. 135 (1921); Miller v. Schoene, 276 U.S. 272 (1928)
11/9 The 'public use' provision of the 'Takings Clause'
Rdg: Hawaii Housing Authority v. Midkiff, 465 U.S. 1097 (1984); Kelo v. City of New London, 545 U.S. 469 (2005)
See follow-up news article on Kelo; and "Eminent Domain Fight has a Canadian Twist," NYT, Oct 18, 2011, online.
11/14 Regulations vs Takings
Rdg: Penna. Coal Co. v. Mahon, 260 U.S. 393 (1922); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Penn Central v. New York City, 438 U.S. 104 (1978); Agins v. City of Tiburon, 447 U.S. 255 (1980); Loretto v. Teleprompter Manhattan CATV Corp, 458 U.S. 419 (1982)
11/16 Rdg: Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Lucas v. S. Carolina Coastal Council, 505 U.S. 1003 (1992); Dolan v. City of Tigard, 512 U.S. 374 (1994)
For those interested: Mark Tunick, 'Constitutional Protections of Private Property: Decoupling the Takings and Due Process Clauses', University of Pennsylvania Journal of Constitutional Law 3:885-925 (May 2001): online; Stop the Beach Renourishment v. Florida Dept of Envt Protection, 560 U.S. __ (2010)
Moot Court: Two opposing parties (each consisting of two attorneys) will present their arguments and the rest of the class will serve as Supreme Court Justices. Justices will question the attorneys, and after deliberation, announce a decision. Attorneys will turn in a brief, Justices, an opinion. The moot court will require two sessions: one to present oral arguments, the other for deliberation and voting.
Moot Court Instructions
Moot Court Case
11/21 Moot Court Oral Arguments, in class.
11/23 Moot Court Justices' Conference and Vote, in class. MEET IN AD 222.
D. The 4th, 5th and 6th Amendment limits on government: Criminal Due Process
11/28 Pre-revolution
Rdg: Brown v. Mississippi, 297 U.S. 278 (1936); McNabb v. U.S., 318 U.S. 332 (1943); Betts v. Brady, 316 U.S. 455 (1942); Wolf v. Colorado, 338 U.S. 25 (1949)
11/30 Criminal Due Process Revolution and retreat?
Rdg: Mapp v. Ohio, 367 U.S. 643 (1961); Miranda v. Arizona, 384 U.S. 436 (1966); Brewer v. Williams (Williams I), 430 U.S. 387 (1977); Nix v. Williams (Williams II), 467 U.S. 431 (1984); Davis v. United States, 09-11328 (USSC, June 16, 2011)
For those interested: Dickerson v. U.S., 530 U.S. 428 (2000); Gideon v. Wainwright, 372 U.S. 335 (1963); "Case of the Florida Drifter," in Garraty, ch. 19; U.S. v. Leon, 468 U.S. 897 (1984)
Moot court opinion/brief due.
12/1 Optional review session
12/5 Final exam: 4-6:30pm
Additional notes:
Policy on Accommodations: In compliance with the Americans with Disabilities Act (ADA), students who require reasonable accommodations due to a disability to properly execute coursework must register with the Office for Students with Disabilities (OSD) -- SR 110 (561-799-8010) – and follow all OSD procedures.
Academic Integrity Policy:Students at Florida Atlantic University are expected to maintain the highest ethical standards. Academic dishonesty is considered a serious breach of these ethical standards, because it interferes with the university mission to provide a high quality education in which no student enjoys an unfair advantage over any other. Academic dishonesty is also destructive of the university community, which is grounded in a system of mutual trust and places high value on personal integrity and individual responsibility. Harsh penalties are associated with academic dishonesty. For more information, see University Regulation 4.001 and http://www.fau.edu/divdept/honcol/students/honorcode.html
Classroom Etiquette Policy: In order to enhance and maintain a productive atmosphere for education, personal communication devices, such as cellular telephones and pagers, are to be disabled in class sessions.