Westmont College, Department of Political Science

Westmont College, Department of Political Science

Constitutional Law (POL 104-1)

Fall 2010, Monday, Wednesday & Friday, 9:15-10:20am

Instructor: Jesse Covington

Classroom: Winter Hall 106

Office Hours: Tuesday 2:00-4:00pm, Thursday 8:00-9:30am, Friday 2:00-3:30pm, or by appointment (Deane Hall 201)

Email:

Phone: x6784

Course Description

Welcome to Constitutional Law! This course examines major cases, themes, theories and problems in American Constitutional Law, with particular focus on the role of the Supreme Court in shaping American life and politics.

Constitutions perform two primary tasks: they organize governments and limit governments. In terms of organization, constitutions usually specify governmental institutions, powers, and methods of change. The first half of the course focuses on these dimensions of American constitutionalism, exploring how judicial power, federalism, separation of powers, foreign affairs, and democratic representation have developed under the United States Constitution. Because power is often abused once it is given to governments, most modern constitutions also specify the limits of governmental power. The second half of the course focuses on such parameters in the American context, particularly individual rights against governmental intrusion. In this portion of the course, civil liberties (like free speech, religious liberty, etc.) and civil rights are prominent themes.

More than merely learning about the major cases in American constitutional jurisprudence, this course is concerned with a number of additional themes. These include normative issues in political theory that underlie constitutional questions, including equality, liberty, privacy, coercion, morality and pluralism. Moreover, in the increasingly global context of the Twenty-First Century, understanding other constitutional systems has grown in importance. Throughout the course, comparative constitutional studies serve to contextualize and illuminate American constitutional law.

Required Texts:

American Constitutional Law. Essays, Cases, and Comparative Notes. 3rd Edition. Edited by Donald P. Kommers, John E. Finn, and Gary J. Jacobsohn. Rowman and Littlefield Publishers, 2009. (ISBN: 9780742563667)

Additional readings will be distributed by e-mail, handouts, library reserves, and/or Eureka.

Always bring all relevant texts to class with you; we will reference them frequently in discussion.

Course Objectives: What to Expect

-  An introduction to the major cases and controversies of American constitutional law from the Founding to the present time, focusing on the one hand on governmental institutions, power and relationships, and on the other hand civil rights and civil liberties as protected under the Bill of Rights and later constitutional amendments.

-  Familiarization with the changing role of the judiciary—particularly the Supreme Court—in American society, law, and politics.

-  Engagement with the major theoretical underpinnings of American constitutional law, helping students perceive the normative assumptions and dilemmas that support and challenge the United States’ constitutional law and judiciary.

-  Global contextualization of American constitutional law, exploring what can be learned from other countries’ constitutional jurisprudence—both for their own sake and for how they shed light on American constitutional law.

-  Training in legal thinking and analysis, such that participants can critically read and distill cases and briefs; participate in and contribute to the shared inquiry of class dialogue and legal argument; and write clearly, concisely, and analytically about legal matters.

-  Preparation further study involving law and American government, including law school, graduate school, or further relevant undergraduate coursework.

Course Requirements: What You Commit To

Preparation, Participation, and Attendance—15%

Attendance: I will take attendance daily. Please let me know ahead of time via e-mail if you need to miss class and why. Each student may miss three class sessions without a detrimental effect on his or her grade. These three class sessions include excused absences, so they should not be thought of as “freebies.” Save them for when you really need them—e.g., sickness, emergency, a field trip for another class, etc. If a student misses a fourth class session his or her grade will be negatively affected (except in extraordinary circumstances). If you have reason to anticipate excessive absences (more than three), then come talk to me about this as soon as possible. Note: please arrive in time to be ready for class to begin on time.

Preparation: Full preparation for class entails reading all of the assigned texts, taking reading notes on the texts, and thoughtfully considering their content. I reserve the right to evaluate preparation in a number of ways, including pop quizzes and asking you questions in class.

Participation: I expect each member of the class to participate in a way that is helpful to the whole class. For those who are not outspoken, will require a special effort to participate. Others may participate far more, but should take responsible care in doing so, ensuring that they speak in ways that help others learn and help others participate as well. Each student should be prepared for me to call on her or him during any class session.

Classroom Decorum:

§  Turn cellular telephones off. If your phone rings during class, I reserve the right to answer it.

§  Come to class properly attired. Please dress as someone who respects your fellow students and wishes to be taken seriously as a participant in meaningful intellectual inquiry (e.g., no pajamas, men should remove hats indoors, etc.)

§  Avoid anything that tends to distract you or others from full participation. Examples include arriving late, noisy snacks, private conversations during class, text-messaging, surfing the internet, etc. Such practices are likely to disrupt your own learning and that of your peers.

Case Briefs—20%

A case brief is a distillation of the core components of a court decision (I will distribute a handout explaining how to write one). Twenty-three cases are assigned for case briefs (bolded in the schedule of readings). Each student will write twenty case briefs (1 page) during the semester, choosing to skip three of the assigned briefs. Ten of these briefs will be graded, while the remaining ten will receive a “check” for being turned in. I will not announce which briefs will be graded.

Midterm Examination—20% (October 8th)

Final Examination—20% (December 17th, 8:00-10:00am)

Court Simulation—25%

This project reproduces the process of bringing a constitutional case before the Supreme Court. Students will be divided into attorneys and justices. Each of these assigned roles will require a significant oral and written component. I will distribute a detailed handout that explains this assignment.

Role in the General Education Curriculum

This class satisfies the “Productions and Presentations” option of the “Competent and Compassionate Action” subsection of the General Education requirements. According to Westmont’s G.E. documentation, this requirement entails “Participation in a course that provides a substantial opportunity for creative production and performance or presentation.” Central to the second half of this course is extensive preparation for and execution of a trial simulation project. This project translates students’ learning about constitutional law into the practical context of a real case currently under consideration by the U.S. Supreme Court. The trial follows many of the protocols of a real case before the Supreme Court: teams of attorneys prepare carefully researched and argued briefs; judges write preliminary position papers on the constitutional question at hand. The capstone of the project is the actual trial itself, in which the teams of attorneys present their cases in court and are cross-examined by the judges. While the production of the trial is the central focus of the project, each student also engages in substantial legal research and writing, producing either a pre-trial brief or a post-trial judicial opinion.

Format

This course will combine lecture and seminar formats. Given the nature and scope of the material involved, lecture will often be appropriate. During lectures, each student should be prepared for me to call on him/her to answer questions without volunteering. This requires rigorous preparation that extends beyond reading the assigned materials to include extensive and detailed note-taking.

There will often be times at which we engage in rigorous analytical discussion. This means that you—the students—will bear great responsibility for our class sessions together. An informed discussion requires thorough preparation by each member, as you must have read, digested and taken notes on all assigned readings, prior to class. Without a firm grasp of the readings, class sessions will degenerate either to efforts to simply recount what the reading contained or uninformed opinion-sharing. However, with a command of the reading materials and thoughtful consideration of them prior to class sessions, our discussions can be thought-provoking times for synthetic, creative, analytical and evaluative thought.

Excellent preparation does not mean you will have no more questions about what you have read. It means instead that you have read, digested, and wrestled with the texts prior to class, and have identified some good questions that you would like to discuss. I consider a cardinal student virtue to be the asking of probing, challenging and thought-provoking questions that lead the whole class to a better understanding of the course materials.

Academic Integrity

Each student is expected to maintain honesty in his or her communication and conduct and to submit his or her own work in every context associated with the course, be it papers, examinations, or anything else. Among other things, this means that plagiarism is absolutely prohibited. “Plagiarism” refers to the practice of submitting the work or thinking of someone else as if it is one’s own. This can be as extensive as submitting an entire paper written by someone else, or as little as using an idea without giving credit to its source. Using quotations and interacting with the ideas of others is expected in student writing, but must be rigorously documented by citation and quotation marks (where appropriate). Paraphrasing does not make someone else’s work yours—the ideas must be cited, even if the words are different. When in doubt, always err on the side of caution by citing your sources. Be particularly careful in your use of the Internet. If you use a website to help you on an assignment in any way, be sure to cite it. (There will be times when I indicate that the Internet should not be used at all on an assignment.)

You are responsible for knowing Westmont’s plagiarism policy, listed at the web address below www.westmont.edu/_academics/pages/provost/curriculum/plagiarism. If you have questions about it, be sure to ask me.

In cases of inappropriately shared material within the class (e.g., copying test answers, papers, etc.), the student whose work is being copied will be held liable as well.

Failure to maintain academic integrity constitutes both stealing and lying (see Exodus 20:15-16). It violates the policies of Westmont College and is a breach of trust that damages your relationship with me and your relationships with your fellow students. A violation of academic integrity is reported to the administration and will result in serious disciplinary consequences. Don’t do it.

Students with Disabilities: If you have special needs related to your coursework or examinations and have established these with the Office of Disability Services (Michelle Hardley, Director x6159; ), please let me know as soon as possible so that we can come up with a plan that best meets your needs.

Late Papers & Exam Conflicts

-  Briefs are due at the beginning of class on the day they are due; these cannot be turned in late.

-  Exams must be taken at the assigned times. Exceptions may be granted for situations of real emergency or necessity (travel plans do not qualify for either classification!). If you have reason to anticipate a conflict, it is your responsibility to bring this to the instructor’s attention as far ahead of time as possible.

References

From time to time, students ask me to complete reference forms or letters of recommendation for them. I am happy to do these. In order to write the best possible recommendation, NOTE: I will need all relevant materials (current résumé, description of position/program, your letter of intent/application, etc.) at least four weeks prior to the deadline.

Schedule (NOTE: This is a tentative outline of the reading assignments and is subject to revision during the semester. In particular, supplementary readings will be added periodically.)

WEEK ONE—THE CONSTITUTION AND THE SUPREME COURT

August 30— Introductions, Syllabus Review

September 1— The Supreme Court—Ch.1 (p. 11-29)

September 3— The Constitution and Constitutional Theory—Ch. 2 (p. 31-56)

-  The U.S. Constitution (p. 1093-1102)

-  Mark Tushnet Red, White, and Blue (Introduction)—Library Reserve

WEEK TWO: JUDICIAL POWER & SEPARATION OF POWERS

September 6— Judicial Power I—Ch. 3 (p. 57-78) (30)

-  Federalist 78 (p. 1125-1128)

-  CASES (p. 80-85)

-  Marbury v. Madison (1803)

-  Handouts

September 8—Judicial Power II (20)

-  CASES (p. 85-104)

-  Martin v. Hunter’s Lessee (1803)

-  Dred Scott v. Sandford (1857)

-  Cooper v. Aaron (1958)

-  Ex Parte McCardle (1868)

-  Luther v. Borden (1849)

-  Baker v. Carr (1962)

-  Nixon v. United States (1993)

September 10— Separation of Powers I—Ch. 4 (p. 105-126)

-  Federalist 51 (Eureka)

-  CASES (p. 127-141)

-  Schechter Poultry Co. v. U.S. (1935)

-  Youngstown Sheet & Tube v. Sawyer (1952)

WEEK THREE –SEPARATION OF POWERS & FOREIGN AFFIARS

September 13—Separation of Powers II

-  CASES (p. 141-166)

-  INS v. Chadha (1983)

-  Morrison v. Olson (1988)

-  United States v. Nixon (1974)

-  Cheney v. U.S. (2004)

-  Clinton v. Jones (1997)

September 15— Foreign Affairs and Constitutional Crises I—Ch. 5 (p. 167-193)

-  The Prize Cases (1862) (p. 201-203)

-  United States v. Curtiss-Wright Export Corp. (1936) (P. 206-210)

September 17— Foreign Affairs and Constitutional Crises II—Parameters on Presidential Power

-  State of Missouri v. Holland (1920) (p. 195-199)

-  Youngstown Sheet & Tube v. Sawyer (1952) (p. 199-201)

-  Korematsu v. United States (1944) (p. 210-215)

-  Ex Parte Milligan (1866) (p. 215-221)

-  War Powers Resolution (1973) (p. 203-206)

WEEK FOUR—FOREIGN AFFAIRS & FEDERALISM

September 20— Foreign Affairs and Constitutional Crises II: The War on Terror