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POS 4603: Honors Constitutional Law I
Fall 2009
MW 4-5:20 in WB 105
Description: Close reading of important Supreme Court opinions concerning federalism, property rights, privacy rights, and substantive 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 using the featured case of the American Collegiate Moot Court Association. Students who are interested may have the opportunity also to argue this case in the Association's regional tournament in Tampa (in mid-November) and national tournament in Miami (in January).
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 and available at the bookstore. 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
8/24 Introduction
I. The Constitution and federalism: The constitution as establishing federal (national) powers, and setting limits both to federal and state powers.
(1) Overview
8/26 Reading: U.S. Constitution and Amendments; Civil Rights Cases, 109 U.S. 3 (1883); sample brief (online)
For those interested: Tour of Supreme Court, online; Draft Constitution of the European Union; Calvin Johnson, "The dubious enumerated power doctrine," Constitutional Commentary 22(1):25-61 (Spring 2005), online ; US Constitution, online
Recommended Reading: "Case of the Prejudiced Doorkeeper," in Garraty.
8/31 Rdg: Shelley v Kraemer, 334 U.S. 1 (1948); NRA v City of Chicago, 567 F.3d 856 (7th Cir 2009); The Articles of Confederation (online); Eric Lichtblau, “Radio Host is Arrested in Threats on 3 Judges,” New York Times, June 24, 2009.
(2) Judicial Review: The role of courts in enforcing the Constitution
9/2 Rdg: Marbury v. Madison, 5 U.S. 137 (1803)
Recommended reading: "The Case of the Missing Commission," in Garraty, ch. 1.
9/7 No Class
9/9 Rdg: McCulloch v. Maryland, 17 U.S. 316 (1819); Antonin Scalia, "Originalism: The Lesser Evil" (BB); William J. Brennan, "The Constitution of the U.S.: Contemporary Ratification"(BB); Ronald Dworkin, excerpt from Taking Rights Seriously (BB).
Recommended Reading: "The Bank Cases," in Garraty.
II. The commerce clause as granting federal powers and limiting state powers
(1)
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?
9/16 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)
9/23 Rdg: Heart of Atlanta Hotel v. U.S., 379 U.S. 241 (1964); United States v. Lopez, 514 US 549 (1995)
For those interested:
(1) 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).
(2) California enacted Prop. 215 in 1996, permitting marijuana for medical uses; this conflicts with the federal Controlled Substances Act, which prohibits even medical uses of marijuana. In Gonzales v. Raich, 545 U.S. 1 (2005), the Court held that the CSA is a valid exercise of commerce clause powers and supersedes state law.
(2) Commerce Clause as constraining State legislative power (the dormant commerce clause)
9/28 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)
9/30 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)
Oct. 1, 7:30pm: Review session, HC 116
10/5 Mid-term
III. Constitutional Limits on Government powers
(1)
Substantive Due process
A. Economic Substantive Due Process or, 'The Constitution and Capitalism'
10/7 Rdg: Slaughterhouse Cases, 83 U.S. 36 (1873); Lochner v. New York, 198 U.S. 45 (1905)
For those interested: "Limits on Truckers' Work Hours," New York Times, July 25, 2007 (BB)
10/12 Rdg: Nebbia v. New York, 291 U.S. 502 (1934); Skinner v. Oklahoma, 316 U.S. 535 (1942)
B. Non-Economic Substantive Due Process and the right to privacy understood as autonomy
10/14 Rdg: Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973)
Recommended Reading: "The Abortion Case," in Garraty. See BB Announcement for additional excerpts of Griswold.
10/19 Rdg: Planned Parenthood v. Casey, 505 U.S. 833 (1992); Gonzalez v. Carhart, 550 U.S. 124 (2007)
For those interested: dissenting opinions in Casey are available online.
(2) 4th Amendment Privacy
10/21 Rdg: Katz v. United States, 389 U.S. 347 (1967); Oliver v. U.S., 466 U.S. 170 (1984); U.S. v. Karo, 468 U.S. 705; California v. Carney, 471 U.S. 386 (1985)
10/26 Rdg: California v. Greenwood, 486 U.S. 35 (1988); Florida v. Riley, 488 U.S. 445 (1989); Kyllo v. U.S., 533 U.S. 27 (2001); Minnesota v. Carter, 525 U.S. 83 (1998); Brigham City v. Stuart, 547 U.S. 398 (2006)
For those interested: Tunick, "Privacy in Public Places: Does GPS Surveillance Provide a Plain View?" Social Theory and Practice (Oct. 2009) (BB); Illinois v. Cabales, 543 U.S. 405 (2005) (BB)
(3) 8th Amendment Cruel and Unusual Punishment
10/28 Rdg: Trop v. Dulles, 356 U.S. 86 (1958); Coker v. Georgia, 433 U.S. 584 (1977); Rummel v. Estelle, 445 U.S. 263 (1980)
11/2 Rdg: Eddings v. Oklahoma, 455 U.S. 104 (1982); Solem v. Helm, 463 U.S. 277 (1983); Harmelin v. Michigan, 501 U.S. 957 (1991); Atkins v. Virginia, 536 U.S. 304 (2002); Ewing v. California, 538 U.S. 11 (2003)
Nov. 1 is the deadline for registering for the Tampa regional moot court tournament.
11/4 Rdg: Roper v. Simmons, 543 U.S. 551 (2005); Kennedy v. Louisiana, 128 S. Ct. 2641 (2008)
Moot Court on 4th and 8th Amendment: 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. Some students may participate in a regional collegiate competition in Tampa Nov. 13-14 involving this moot court case, and if they qualify, could then participate in a national competition in Miami in January.
Moot Court Instructions (updated 10/21)
Moot Court Case
11/9 Moot Court oral arguments, in class.
11/11 Veteran's Day, no class.
11/16 Moot Court Justices' Conference and Vote (in AD 222)
Moot court paper due Nov. 25.
(4) The right to private property and the Takings Clause
11/18 Rdg: Hawaii Housing Authority v. Midkiff, 465 U.S. 1097 (1984); Kelo v. City of New London, 545 U.S. 469 (2005); Miller v. Schoene, 276 U.S. 272 (1928)
See follow-up news article on Kelo.
11/23 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)
11/25. 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: Private Property Protection Act of 1995; 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): Available via westlaw or lexis-nexis.
IV. Executive Powers
11/30 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)
12/2 Rdg: "War Powers cases" (BB), containing excerpts from Hamdi v Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Boumediene v. Bush, 553 U.S. __ (2008)
For those interested:
"Scholar Barred from US, but No One Will Tell Her Why" (NYT 9/17/2007, on State dept's power to revoke visas) and Haig v. Agee, 453 U.S. 280 (1981); Proclamation of National Emergency (Sept 14, 2001); National Emergencies Act ; War Powers Resolution (1973) ; Gulf of Tonkin Incident
Final exam: Dec. 7th, 4pm-6:30 pm, WB105