Constitutional Law I
Section 2
last update Oct. 26, 2011
Please note that although the syllabus shows what is planned, the course is very unlikely to stay exactly on schedule. This syllabus is subject to change to address current constitutional law developments and to meet the students' needs as perceived by the professor during the semester.
Howard University is committed to providing an educational environment that is accessible to all students. In accordance with this policy, students in need of accommodations due to a disability should contact the HUSL Office of the Dean of Students, Assistant Dean Dionne Duckett (202-806-8006; dduckett@law.howard.edu), for verification and determination of reasonable accommodations as soon as possible after admission to the Law School and at the beginning of each semester as needed.
Table of Contents
This course explores the power relationships enshrined in the United States Constitution. In this course you will examine the basic structures of the U.S. constitutional system, aspects of federalism including the balance of power between the federal government and the states, the historical development of the Supreme Court as an institution, the philosophical justifications for the exercise of judicial review and judicial authority of judges in a democratic society, and the various methods of legal reasoning that are brought to bear in interpreting the Constitution. Among the specific topics to be examined are judicial review, the 11th Amendment, the commerce power and some of the other powers of Congress, the separation of powers, economic liberties and redistribution (the contracts and the taking clauses), and substantive due process as it relates to the power of the judiciary.
The course also examines approaches to interpreting the Constitution and issues relating to those approaches.
Required
The Constitution
Jonathan D. Varat, William Cohen, & Vikram, Constitutional Law–Concise 13th Edition( 2009 Thomson West) ISBN-13: 9781599416182
Jonathan D. Varat, William Cohen, & Vikram, Constitutional Law,(2011 Supplement to the Concise 13th Edition (Thomson West 2011) ISBN-13: 9781609300135
Supplemental materials to be provided from the Professor from time to time (online), including the supplement for the Worcester v. Georgia, 31 U.S. 515 (1832), case and possibly other materials.
Recommended Books
Additional Perspectives
Brian Landsberg and Leslie Jacobs, Global Issues in Constitutional Law (Thompson West 2007)
Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (Oxford University Press 2006) (paperback edition 2007)
Study Aids
Weaver, Hancock, Lively, Frieland, & Scott, Inside Constitutional Law: What Matters and Why (Aspen 2008)
Weaver, Frieland, Hancock, & Lively, Acing Constitutional Law (West 2010)
Allan Ides & Chistopher N. May, Constitutional Law: National Power and Federalism – Examples and Explanations (5th ed. Aspen Publ. 2010)
Office:
402 Houston Hall
Phone:
202-806-8017
Email:
stevenjamar@iipsj.org (I will typically respond to email within 24 hours.)
Office Hours:
The times listed below may change. I will post up-to-date office hours online at http://iipsj.com/SDJ/index.htm
Mon
1:00-2:30
Wed
1:00-2:30
Fri
10:30-Noon
Occasionally I will not be able to keep these office hours because of other commitments.If you need to see me at another time, please contact me so we can make an appointment.
I am often in my office at times not posted as office hours and during those times I am generally able to meet with students.
Final Examination
100 pts.
Read the assigned material before class each day. Be prepared to orally brief the cases and discuss the problems presented by the readings.
The law school attendance policy will be enforced. If you miss 25% or more of the scheduled class sessions, starting from the first day of scheduled classes, you will receive an "F" for the course unless you formally withdraw from the course before the last day to drop a course as set by the law school academic calendar. Under the law school policy, attendance means being present at the start of class and throughout the class period. Tardy students and students who leave class early will be counted as absent.
Please note that this schedule identifies the topics to be considered in the order in which they will be considered and identifies the readings for the topics. After the first class, the specific reading for the next class will be given. Please be sure to check the supplement regularly and consider the material in it as assigned as part of the readings for each topic. I have noted most of the supplement readings, but may have missed a few. Note that the supplement pages are tied to the full Varat book (we are using the "Concise" edition), so you must track topics and sections, not pages.
Judicial Review and Authority
Classes 1 & 2: Constitution Articles 1, 2, 3 & Amends. 1, 5, 10, 11, 14; Varat, Cohen, & Amar pp. 2-36, especially pp. 25-33(Marbury v. Madison (1803))
Class 3: Trail of Tears supplement (1832) (download); Cooper v. Aaron (1958) (download)
Congressional Control of Judicial Review by the Federal Courts, pp. 37-43 (Ex Parte McCardle(1868); U.S. v. Klein (1871))
Jurisdiction of the Federal Courts in Constitutional Cases
Introduction to Justiciability and Advisory Opinions 44-47
1793 Position of Supreme Court; Flast v. Cohen summary of advisory opinion doctrine and rationale (1968) 45-46
Standing 47-64; supp. 1-3
Warth v. Seldin (1975) 47-55
Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977) (note case 55-56)
Note and case summaries on injury in fact and nexus 56-59
Supp. 1-3
Lujan v. Defenders of Wildlife (1992) 59-64
Political Question, pp. 64-81
Baker v. Carr (1962)(extended note) 64-66
Powell v. McCormack (1969) 66-68
Nixon v. United States (1993) 68-74
Goldwater v. Carter (1979) 74-79
Notes 80-81
Allocation of Governmental Powers 83-84
Scope of National Power 85-165
Constitutional Convention 85-90
Early interpretation and application 91-113
McCulloch v. Maryland (1819) 92-100
Notes 100-106
Supp. 4-8, U.S. v. Comstock (2010)
Gibbons v. Ogden (1824) 106-113
Lochner Era 359-376 (note these readings are out of the casebook order)
Limits on Economic Regulatory Legislation – Economic Due Process and Liberty of Contract 359-376
Lochner v. NY (190) 361-366
Notes on post-Lochner liberty of contract 371
Ferguson v. Skrupa (1963) 374-375
Note 375-377
National Power Today
Commerce Power
Notes 114-123 including extended discussion of history of commerce power quoted from United States v. Lopez (1995) with comments by the textbook authors
Heart of Atlanta Motel v. United States (1964) 123-126
Katzenbach v. McClung (1964) 126-128
United States v. Morrison (2000) 129-143
Gonzales v. Raich (2005) 144-157
Note cases 157-158
Spending power 158-165
Series of note cases
United States v. Butler (1936) 158-161
Chas. C. Steward Machine Co. v. Davis (1937) 161-163
Helvering v. Davis (1937) 163
Sabri v. United States (2004) 163-164
Buckley v. Valeo (1976) 164-165
South Dakota v. Dole (1987) 163
Enforcement of Post-Civil War Amendments 802-808; 844-852; 853-896 (note these readings are out of the casebook order)
Civil Rights Cases 802-808
Jones v. Alfred H. Mayer Co. (1968) 844-848
Note 848-852
City of Boerne v. Flores (1997) 853-862
Note on Kimel v. Florida Bd. of Regents (2000) 862
Supp. 57-61 Northwest Austin Municipal Utility District No. One v. Holder (2009)
Constitutional Limitations on State Power 214-242
The Contract Clause 371
The Takings Clause (Kelo v. City of New London)
The Due Process Clause 371-377
Dormant Commerce Clause 215-227
New Energy Co. of Indiana v. Limbach (1988) 215-219
Kassel v. Consolidated Freightways Corporation (1981) 219-226
Preemption 227-241
Introductory note 227-228
Gade v. National Solid Wastes Management Association (1992) 228-237
Note on examples of preemption 237-241
Incorporation – Constitutional Rights as Limitations on States
McDonald v. Chicago (2d amendment incorporation case) Supp. 12-39
State Sovereignty and Federal Regulation 164-212
State Immunity from Federal Regulation 166-201
Note 1936-1985 pp. 166-168
Garcia v. San Antonio Metropolitan Transit Authority (1985) 168-176
New York v. United States (1992) 176-191
Printz v. United States (1997) 191-201
11th Amendment and the New Federalism 201-214; 805-838; 675-685
Pennhurst State School & Hospital v. Halderman (1984) 201-207
Note: 11th Amendment and retroactive relief 207-208
Seminole Tribe of Florida v. Florida (1996) 208-213
Note on later cases applying 11th Amendment to TM, patent, and age discrimination suits, but not bankruptcy 211
Bd. of Trustees of theUniversity of Alabama v. Garrett (2001) 862-870
Nevada Dept. of Human Resources v. Hibbs (2003) 870--877
Tennessee v. Lane (2004) 877-888
Dickerson v. United States (2000) 888-893
Note on Federalism and Congressional Approval of "Unconstitutional" State Laws 893-895
Saenz v. Roe (1999) 732-752
Separation of Powers (Federal Government) 242-317
Introductory note -- 242
Youngstown Sheet and Tube Co. v. Sawyer (Steel Manufacturing Seizure Case)((1952) 242-247
International Relations 247-249
War and National Defense 249-251
The Prize Cases (1863) 249-251
Mora v. McNamara (1967) 251-253
Hamdi v. Rumsfield (2004) 253-272
Boumediene v. Bush (2008) 272-297
Line Item Veto
Delegation of Legislative power to the Executive 297-298
Clinton v. City of NY (1998) 299-308
Congressional Interference with Presidential Prerogatives 308-
Legislative Veto
INS v. Chadha (1983) 308-315
Mistretta v. US (1989) 315-316
Officers of the United States 316-
Morrison v. Olson (1988) 316-328
Presidential Immunities
US v. Nixon (1974) 328-331
Clinton v. Jones (1997) 331-338
Notes 338-339
Bush v. Gore (2000) 701-705
Full Faith and Credit (read the Wikipedia entry on Defense of Marriage Act; you may also be interested in Prof. W. Sherman Rogers' exploration of the constitutionality of DOMA in his article, W. Sherman Rogers, The Constitutionaliy of the Defense of Marriage Act and State Bans on Same-Sex Marriage: Why They Won't Survive, 54 How. L.J. 125, 158-160 (2010.))