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Constitution and the supreme court class.

office hours: Monday and Wednesday 4:30-6:00

Course Description: This is a course designed to introduce students to the historical struggles ofthe United States Supreme Court in gaining and maintaining its power to serve as the final

interpreters of the Constitution. Over the past 220 years, the Supreme Court has gained great

authority by limiting the power of other branches and protecting individual rights fromgovernment encroachment. This course studies many of the famous cases that have established

the Courts power, as well as the means it currently uses to maintain and extend this power.

Goals and Objectives:

Become familiar with knowledge base: This course introduces students to key provisions in

the U.S. Constitution and how their meaning has been changed by decisions of the SupremeCourt.

Develop critical thinking skills: This course encourages students to critically examine the

arguments used by the Supreme Court to support its interpretation of constitutional provisions.

Develop information literacy and research skills: This course introduces students to the Lexis/Nexis database of court decisions to aid them in preparing their moot court argument and their

judicial opinion.Promote effective communication: This course provides students experience in oral and written

communication by requiring regular class discussion of constitutional arguments as well as a

moot court oral argument and the preparation of a Supreme Court opinion.Future planning: This course demonstrates what the study of law is like in a law-school type

environment, and simulates the litigation of a Supreme Court case.

Methods of Assessment:

10% Active class participation.10% Short briefs of two cases, due February 13 and March 6.

10% Oral argument on May 13.20% Midterm examination on April 8.

20% Opinion on constitutional issue, due June 7.

30% Final examination on June 12.

Texts:

Lee Epstein and Thomas G. Walker, Constitutional Law for a Changing America: Institutional

Powers and Constraints (7th

ed. 2011) ISBN 978-1-60426-516-3. All page numbers refer to thisedition. Additional cases and other readings will be available on Blackboard and/or distributed in

class, and are indicated by an asterisk (*).

The best book I have read in recent years on the history of the Supreme Court is Barry

Friedmans The Will of the People (2009, New York: Farrar, Strauss and Girouz). The ISBN

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number is 978-0-374-22034-1. It is available from Amazon.com new for $8.80 and can also be

bought in e-book format for $9.99. This is recommended for students who wish a scholarly

history of how the Supreme Court has changed the Constitution that is similar to that offered bythe instructor.

Course content:

January 30. Introduction to the study of the Constitution. Reading: 3-10, 51-56; the Constitution(675-682, through the Bill of Rights).

Constitutions and constitutionalism

The Declaration of IndependenceRejecting the British model of government

Failure of the Articles of ConfederationReplacement, not amendment

A Republic, if you keep it

The ratification process and the Bill of Rights

February 4-6. The Supreme Court establishes judicial review. Reading: 58-64, 93 (AdvisoryOpinions), 492-496; Federalist 78 (687-690).

Judicial review in Britain

Judicial review in the US prior to 1787Judicial review at the Constitutional Convention

Alexander Hamilton and Federalist 78

The 1789 Judiciary Act

The Supreme Court in the early 1790s

Deciding not to decide:Hayburns Case and Jays letterChisholm v. Georgia and the power of final interpretation

Hylton v. United States and the power to change the meaning of the ConstitutionAvoiding constitutional challenges: Sedition Act prosecutions

Adams court-packing plan and the midnight judges

February 11. John Marshall v. Thomas Jefferson: the Court battles against a partisan challenge.

Reading: 64-72, 82-89.Ware v. Hylton and the invalidation of state laws

Marbury v. Madison

Stuart v. Laird: triage in the face of Congressional attackImpeachment and trial of Supreme Court Justice Chase

Evaluation of John Marshalls early decisions

Should we fear the power of judicial review?

February 13-20 (No class February 18, Presidents Day.) The Supreme Court battles the states.First case brief due February 13. Reading: 74-82,143-149;McCulloch v. Maryland*; 23-33,

400-407, 336-338, 641-642.Martin v. Hunters Lessee and review of state court decisions

Cohens v. Virginia and the Eleventh AmendmentMcCulloch v. Marylandand the extent of federal power

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Methods of constitutional interpretation

Gibbons v. Odgen and the exclusivity of federal powerWorcester v. Georgia and President Jacksons defiance of the CourtThe Nullification Crisis and Jacksons defense of the Court

Barron v. Baltimore: limiting the scope of the Bill of Rights

February 25-27. The Civil War and Constitutional Crisis: the President v. the Court. Reading:

338-345; Friedman, The Will of the People, 105-124.*The Supreme Court as final arbiter of slavery issues

Scott v. Sanford: the Court attempts to resolve the slavery issueAftermath ofDred Scott: Civil War becomes inevitable

Saving the Constitution while disobeying its commandsEx parte Merryman: Lincoln defies the Supreme CourtJudicial deference during the Civil War

Changing the Constitution to create racial equality

March 4-6. The Supreme Court and Reconstruction. Second case brief due March 6. Reading:89-91, 585-588, 591-592 (Bradleys dissent); Slaughter-house Cases.*

Ex parte Milligan and the Courts reassertion of power

The Reconstruction Acts and the battle for the 14th

AmendmentEx parte McCardle and the constitutional test for military trials

Was the 14th

Amendment validly ratified?

The qualification challenge to Hiram Revels

The Supreme Court during Grants Presidencythe Slaughterhouse Cases and the resurrection of state power

March 11-13. The Court restrains regulation of the economy. Reading: 595-615, 407-415,345-350.

The Court further weakens the 14th

AmendmentMunn v. Illinois and the public interest doctrineLochner and the Courts challenge to state regulatory power

The Brandeis brief andMuller v. Oregon

The Court reinterprets the Commerce ClauseHammer v. Dagenhartinvalidates federal restrictions on child labor

March 18-20. The Supreme Court contributes to economic crisis in the 1930s. Reading:

615-623, 572-576, 415-429; Franklin Roosevelts Fireside Chat of March 9, 1937.*Adkins v. Childrens Hospital: Substantive Due Process expandsThe Depression arrives, and the Court bends the ConstitutionSchechter Poultry: the Supreme Court confronts the New DealUnited States v. Butler and the constitutionality of the AAA

Further rejection of the New Deal: Carter and Tipaldo

Why amending the Constitution was not a solutionThe Court-Packing Plan and FDRs Fireside Chat

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April 3. Review for Midterm Examination.

April 8. Midterm Examination.

April 10-15. How the Supreme Court works today. Reading: 12-23, 33-43; Tyrone Brown,Clerking for the Chief Justice*;Brooks v. Florida*.

Getting to the Supreme CourtDeciding to decide: the process for granting cert

Likes and dislikes of the Supreme Court

Strategic questioning during oral argumentStrategic bargaining during the opinion writing process

Three approaches to Supreme Court decision-makingChanging its mind after argument: Deciding not to decide

April 17. The Constitutional Revolution of 1937. Reading: 623-627, 432-441.

West Coast Hotel: the Supreme Court buries economic rightsJones & Laughlin Steel: the Court expands the Commerce Clause

The collapse of the court-packing bill

Lessons from the switch in time that saved nineUnited States v. Darby: no need for another amendment

April 22. The Commerce Clause under the New Constitution. Reading: 441-444, 467-470,477-485.

Wickard v. Filburn: the end of Commerce Clause restrictions?Heart of Atlanta Motel v. U.S.: enforcing anti-discrimination lawsSouthern Pacific v.Arizona: the Dormant Commerce Clause

Hunt v. Washington: states cannot discriminate against outsiders

April 24-April 29. The new federalism and a weakened Commerce Clause. Reading: 445-464;National Federation of Independent Business v. Sibelius, part A*.

Lopez: the Court resurrects Commerce Clause limitsMorrison and limits over federal power to protect civil rightsGonzales v. Raich: drugs are worse than expanded federal power

National Federation of Independent Business v. Sibelius: the Commerce Clause does not justify a

mandate to purchase health-care insuranceHow to research the moot court problem

How to present an oral argument

May 1-6. Taxing and Spending Powers under the Constitution. Reading: 496-501, 504-507,

511-518, 523-530;National Federation of Independent Business v. Sibelius, part B*.

The Constitutionality of the Income Tax: Pollock v. Farmers Loan

The demise of constitutional restraints on the scope of federal taxes

Davis v. Michigan Treasury: state taxes must be non-discriminatory

Taxes as a means of regulation:McCray, Drexel Furniture

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Using the spending power to coerce states: Steward Machine v. Davis

Why you cant drink until youre 21: South Dakota v. DoleNational Federation of Independent Business v. Sibelius: the taxing power expands, the spendingpower contracts

May 8. Policing the Limits of the Veto Power. Reading: 261-273, 201-207.INS v. Chadha and the demise of the legislative vetoBowsher v. Synar and the independent agency vetoClinton v. City of New Yorkand the demise of the line-item veto

May 13. Oral Argument.

May 15. No class, Shavuos.

May 20. Presidential power to Take care that the laws be faithfully executed. Reading:

180-183, 194-201;In re Debs*; 213-220.

In re Neagle and the power to reallocate resourcesIn re Debs and the power to compel private actionMyers v. United States and the power to fire federal officials

May 22. The scope of Presidential emergency powers. Reading: Youngstown Sheet & Tube v.

Sawyer.*

The background to the emergencyThe Presidents options to stop the strike

The Supreme Courts options once the steel factories were seized

Why did the Court choose the option it did?

May 27. No class, Memorial Day.May 29-June 3. Justifications for Presidential usurpation of judicial power. Reading: 275-279,

286-297.

Lincoln and the use of military commissions to try civiliansJohnson and the Lincoln conspirators trial

The Court insists on jury trials for civilians: ex parte Milligan

Federal power to suspend judicial process: ex parte Quirin

Presidential power to cancel individual trials: Korematsu

June 3-5. The Guantanamo detainee cases. Review for final examination. Reading: 307-320;Boumediene v. Bush.*

Presidential power to detain suspects indefinitely:Hamdi, RasulHamdan v. Rumsfeldand review of combatant status classificationsBoumediene v. Bush and judicial protection for habeas corpus

June 10. Review for final examination.

June 12. Final Examination.

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