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Constitutional Law

by: Waino Abbott

Constitutional Law POLS 5211

Waino Abbott
The U
GPA 3.79


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This 8 page Class Notes was uploaded by Waino Abbott on Monday October 26, 2015. The Class Notes belongs to POLS 5211 at University of Utah taught by Staff in Fall. Since its upload, it has received 28 views. For similar materials see /class/229968/pols-5211-university-of-utah in Political Science at University of Utah.

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Date Created: 10/26/15
Mr Levin Of ce Hours Of ce OSH 210D Tues 4530 pm Phone 8015879096 Mon Wed 34 pm Email daniellevin at polisciutahedu or by appointment http wwwpolisciutahedudlevin Fall 2007 Political Science 5211 Constitutional Law Mon Wed 125 245 pm OSH 238 I would not give afigfor the simplicity on this side ofcomplexity but would give my lifefor the simplicity on the other side ofcomplexity Oliver Wendell Holmes Jr Course Objectives Over the past 200 years the Supreme Court has engaged in a continuing debate over the meaning of the US Constitution In this course we will examine the Court s attempts to apply the Constitution to the modern state that has evolved to respond to the increasing complexity of American political economic and social life In particular we will examine the Court s expanding role in determining the powers and limitations of the nation s political institutions the powers of the states and the right to representation through the electoral process The course begins with a review of the powers of the federal judiciary the limitations that are placed upon it by the constitutional system and the Supreme Court s own selfimposed restrictions We will then consider the distribution of power within the national government especially the privileges and powers of Congress and the Presidency A major portion of the course will involve an evaluation of the expansion of federal power in an increasingly interconnected national economy the Court s new movement to limit and possibly reverse that expansion and the states continuing attempts to regulate commerce We will conclude by examining the effect of constitutional requirements on representation and the regulation of elections and campaign nance As we read the Court s decisions we will closely analyze the Court s reasoning as a process of argumentation and note the continuities and inconsistencies of constitutional argument over time and across issues Students will learn how to read legal cases identify legal issues and apply legal forms of reasoning as well as gaining substantive knowledge of the Constitution and its interpretation We will place the Court s decisions in their political and historical context and examine their effect on American politics This course is intended to teach students how to argue clearly and logically Written assignments will place a premium on the ability to write both clearly and logically Course Requirements and Methods of Evaluation There will be a midterm exam and a nal exam The midterm will include multiple choice and short answer questions In addition to the cases and doctrines we have covered the multiple choice portion will include questions on the Court as an institution the answers are found in CLP Chap 2 BI The nal exam will have the same format but will cover doctrine and cases only Please bring a blue book to these exams There will be a multiple choice test on the US Constitution The questions on this test are quite detailed and you should study the Constitution s text with an eye to detail You should know the numbers of the Constitution s amendments During the course of the semester after approximately the third week I will provide you with a series of hypothetical cases for which you will be required to write three quotdecision memoranda Each assignment will be made for a period of one week at the end of the week the assignment will time outquot and you may only submit the new assignment assigned for the next week The purpose of these assignments is to improve your writing and analytical skills Iwill grade on the basis of writing and analysis as much as knowledge of the case law Instructions for the memoranda are attached please refer to Strunk and White Elements of Style while writing your memoranda to improve your writing While your memoranda must be submitted by the dates listed on the syllabus the due date for each speci c memorandum will be listed on the assignment The assignments will be sent via the University email system I will include only the better two grades from your three papers in your nal grade but you must submit all three You are required to read the assigned cases and other readings before the class session for which they are assigned You are responsible for all readings case names within assignments are only those which we will review in class You should outline and quotbriefquot please see attachment each of the cases before the class meeting so that we may begin our discussions where the judicial opinions conclude Much of our work in class will involve the case method and I reserve the right to call upon any of you to explain the ruling in an assigned case at any time Attendance is mandatory I will circulate a seating chart during our second meeting Conformance with the seating chart is required If you arrive late for class you will be marked absent Your grade will be computed as follows Classroom Participation 20 Date or Date Due Constitution Test 5 September 17 Memorandum l 20 Must be received by October 24 Memorandum 2 20 Must be received by November 21 Memorandum 3 0 Must be received by December 5 Midterm 15 October 17 Final Exam 20 Dec 14 at 1 pm Required Materials We will primarily use David O Brien Constitutional Law andPolitics Vol I Norton 6th Ed 2005 hereafter CLP Please bring the casebook and relevant web cases to every class I have also placed William Strunk and EB White Elements ofStyle on sale at the bookstore you should use this as a guide for your writing We will be using WebCT I will be distributing the hypothetical cases on WebCT and will include links to several additional readings in the Web version of this syllabus posted there I will also regularly post study guides and other supplementary materials on WebCT please check this site every week Non negotiable Policy on Late Papers and Unsubmitted Work Papers will be accepted until 5 pm on the date due I will lower a paper grade one full grade if you submit a paper due on a date for which you have an unexcused absence Late papers will lose one full grade if submitted within a week ofthe due date after a week papers will not be accepted Failure to submit any assignment during the semester will result in failure ofthe entire course Submission of Papers to SafeAssign Memoranda must be submitted both in hard copy and through SafeAssign part of WebCT Academic Misconduct All quotes must be cited as such and include a clear reference to the work from which they were drawn they will otherwise be treated as plagiarism All use of materials other than course materials must be accompanied by full citations All work in this course is assigned as individual work working as groups or teams is strongly discouraged and may be treated as cheating as is all but the most casual assistance from others including friends and family members If you intend to submit a paper which signi cantly draws upon work for another class you must rst receive eXplicit permission to do so from both myself and the other instructor Any form of academic dishonesty will result in a failing grade for the course and other disciplinary action up to expulsion from the University Americans with Disabilities Act Notice Persons with disabilities requiring special accommodations to meet the eXpectations of this course should provide reasonable prior notice to the instructor and to the Center for Disability Services 162 Olpin Union Building 5815020 to make arrangements Written material in this course can be made available in alternative format with prior noti cation Accommodation of Sincerely Held Beliefs I will work with students who require schedule changes due to religious or other signi cant obligations I will not consider any requests based on course content Because modern American politics includes many debates over sexuality obscenity religious practice and belief and political ideology any class that did not address such issues would be substantially limited Students are required to attend all classes and to read all assignments All assignments and lectures are related to our subject matter andI do not include gratuitously salacious material If you have any objection to the frank and open discussion of any of the topics above including the use of adult language when appropriate to subject matter please drop the class Schedule of Classes and Assignments Please note that may add additional materials and update study sheets throughout the semester Please watch WebCT and the Web Resource Page August 20 Introduction to Course Study for Constitution Test CLP l familiarize yourself with terms in CLP Glossary 1049 Familiarize yourself with Supreme Court process in CLP Chap 2 BI August 22 Judicial Review CLP Chap 1 A Marbury V Madison Eakin V Raub Aug 27 Theories ofConstitutional Interpretation CLP Chap 1 B WebCT Brennan Contempora Rati cation Scalia Originalism The Lesser Evi Marshall quot on the 39 39 39 of the United States C 39 39 Meese The Law of the Constitution Posner What am I a Potted Plant Sept 3 Labor Day Aug 29 Sept 5 Judicial Federalism CLP Chap 7 C D Martin V Hunter39s Lessee Cooper V Aaron Younger V Harris Michigan V Long People V P Video Ja ree V Bd ofSchool Commissioners CLP 206 KY V Wasson CLP 210 Sept 10 12 17 Jurisdiction Standing and Justiciability CLP Chap 2 A Standing Flast V Cohen Valley Forge Coll V Americans United Lujan V Defenders of Wildli e Elk GroVe Unified School Dist V Newdow Justiciability and Political Questions Baker V Carr Goldwater V Carter Web Hein v Freedom Qom Religion Foundation Sept 17 C tquot quot Test HaDDV C quot quot DaV Its 220m BirthdaV Sept 19 24 Presidential Power over Foreign Affairs CLP Chap 3 B C US V Curtiss Wright Export Corp Dames ampMoore V Regan Sale V Haitian Centers Council Missouri V Holland US V Pink US V AlVarez Machain The War Powers Resolution p 302 Web Dellums v Bush Sept 26 Oct 1 Presidential Power in an Emergency CLP Chap 3 D amp Chap 4 A The Prize Cases Ex Parte Milligan Korematsu V US Rasul V Bush Hamdi V Rumsfeld Youngstown Sheet amp Tube V Sawyer New York Times V US WebCT Hamdan V Rums eld Hamdan Chart Oct 3 Congressional Privilege and Executive Privilege CLP Chap 5 A GraVel V US Eastland V US SerViceman is Fund Hutchinson V Proxmire CLP Chap 4 D US V Nixon Clinton V Jones WebCT Materials on ExecutiVe PriVilege October 8 13 Fall Break Oct 15 Legislative Investigations CLP Chap 5 B Watkins V US Barenblatt V US Gibson V Florida Oct 17 Midterm Exam Bring Blue Book includes material from CLP Ch 2 B I Oct 22 Congressional Power and Delegation CLP Chap 4 C CheVron V NRDC Schecter Poultry V US Industrial Union Dept V American Petroleum Institute INS V Chadha Clinton V City ofNew York McCulloch V Maryland CLP 527 PLEASE NOTE THAT DATES BELOW REFLECT CHANGES TO SCHEDULE BECAUSE OF OUR DELAYED PROGRESS THROUGH SYLLABUS Nov 5 The Appointment Power CLP Chap 4 B Myers V US Humphrey39s Executor V US Bowsher V Synar Morrison V Olson Nov 7 The Early Commerce Clause CLP Chap 6 A Gibbons V Ogden CLP Chap 6 B US V EC Knight Swift amp CoV US The ShreVeportRate Case Hammer V Dagenhart Carter V Carter Coal Co Nov 12 14 The Modern Commerce Clause CLP Chap 6 C NLRB V Jones amp Laughlin Steel Corp US V Darby Wickard V Filburn Heart ofAtlantaMotel V US Katzenbach V McClung US V Lopez US V Morrison Nov 19 Taxing and Spending Clause CLP Chap 6 D Pollack V Farmers Loan StewardMachine V DaVis US V Kahriger So Dakota V Dole Nov 21 State Power over Commerce within the Federal System CLP Chap 7 A Cooley V Bd of Wardens Southern Pacific V Arizona Bibb V Navajo Freight Maine V Taylor PA V Nelson Web Granholm V Heald Nov 21 Second decision memorandum due if not already submitted Nov 26 28 The Tenth Amendment and State Sovereignty CLP Chap 7 B National League ofCities V Usery Garcia V San Antonio Metro Transit Authority New York V US Printz V USMack V US39 Term Limits V Thornton p 468 Dec 3 The Takings Clause CLP Chap 9 C Hawaii HousingAuthority V Midki Nolan V California Coastal Commission Lucas V South Carolina Coastal Council Web Kelo V New London39 Article on Kelo impact Dec 5 The Constitution and Representation CLP Chap 8 B Wesberry V Sanders Reynolds V Sims Vieth V Jubelirer Baker V Carr p 145 Dec 5 Third decision memorandum due if not already submitted Final Exam Fridav Dec 14 1 220 pm Bring Blue Book Mr Levin Fall 2007 Constitutional Law POLS 5211 Instructions on Memoranda Over the course of the semester you must write three memoranda concerning hypothetical cases which I will furnish to you with every topic generally one a week You must submit the memoranda before the dates given on the syllabus late memoranda will be dropped one full grade In writing the memoranda you should follow these guidelines 1 Organization a Brie y in one or two paragraphs recount the significant facts b Describe the constitutional questions that the case presents Use only two or three sentences for each question You may wish to number these questions for easy reference later on Even if you number the questions please describe the questions when you answer them c Recommended answers for each of the constitutional questions providing reasons for your recommendations and referring to relevant cases and other materials Announceyour decision first and then justify it Divide your answers into sections which respond to the particular constitutional questions which you have noted Arrange your answers so that they logically follow each other39 in most cases howyou answer one question will determine how the others are properly answered d Justify your answers by first announcing your decision in regard to each question and providing the central point of your argument The President s decision to disregard the War Powers Act is clearly unconstitutional because of Congress s power to make laws governing the Armed Forces quot Then review the history of precedents which back up your argument In Smith v Jones the Supreme Court found that Congress cannot delegate its law making responsibilities to the President In that case it said blah blah quot Then demonstrate why this precedent provides the proper rule or why another does not As in Smith the President does not rely on a speci c statute Unlike Johnson the act is not pursuant to a treaty obligationquot 2 Approach a Assume that you are a law clerk arguing before yourjudicial employer about how a case should turn out Your reasoning justifying the decision is the most important part of your work You are NOT the judge and certainly are not the entire Supreme Court so do not create new law previously unknown to the constitutional jurisprudence of the United States b While you are encouraged to have fun with the cases please do not add facts or make up precedents Cuteness is its own punishment 3 Format a Papers must be typed four to five pages doublespaced with one inch margin all around Do NOT exceed five pages Use black ink and a twelve point font in black ink Violators will be forced to purchase new reading glasses for the instructor b You writing mustbe grammatically correct with proper usage and attention to style If you wish to argue persuasively you must write in language that your reader will easily understand Proofreading is expected a poorly executed and careless paper displays the author s disrespect for the reader Such disrespect will be noted 4 Notes on Proper Style a Avoid long quotes However if you do have a quotation longer than two full lines please block quote Create a new paragraph that is indented and single spaced like this Do not place quotation marks at either end of a block quote Include any citation in parentheses at the end b Capitalize proper nouns ie Congress First Amendment Do not capitalize adjectives ie congressional religious The President has presidential powers c Be aware of the differences between possessives and plurals quot It isquot is properly abbreviated quotit39squot whereas quot its indicates the third person gender neutral possessive Failure to follow this rule identifies one as less than fully literate The use of an apostrophe to signal a plural noun is strictly verboten The lack of an apostrophe in a possessive noun will be punished Theretheirthey re and that which confusion will be disciplined appropriately d Punctuation belonging to a quote belongs inside of the quotation marks You do not need a comma before all quotations although it may be appropriate in particular instances see Strunk and White The use of ellipses to begin or end a quote is discouraged lfyou are using parenthetical citation end the quote insert the parenthetical citation and finish with a period If you are using footnotes use the period end quotations marks then footnote e Simple writing is powerful writing Avoid owery prose and limityour use of adjectives Thesaurus abusers and creative writers will be required to enter a twelve step program f The ultimate authority for all rules of style is William Strunk Jr and EB White39s The Elements of Style MacMillan any edition Refer to it often while revising your own work It will serve you well TheJWLA Handbook and the University ofChicagoManual ofStyle are also excellent resources for grammatical and stylistic usage g You should provide a citation when referring to or quoting from a case lfthe case or the quote is in the assigned materials you may simply indicate such with the page number in parentheses eg O Brien 286 Case names should be in either italics or underlined with italics preferred On second use you may simply use the first party s name unless it is the govemment of the United States or a state there are too many cases involving these parties use the second party s name in such cases You will often see a series ofnumbers and initials following case names these are references to legal reporters the volumes which contain the opinions The most important of these for our purposes is the US Reports issued by the government In such citations the first number indicates the volume the initials in the middle indicate the reporter the second number indicates the first page on which the case is found and the year of the decision is included in parentheses Marbury v Madison 5 US 137 1803 would be found on p 137 of the fifth volume of the US Reports HOW TO BRIEF A CASE Adapted from the Casenates Publishing Website DECIDE ON A FORMAT AND STICK TO IT Structure is essential to a good brief It enables you to arrange systematically the related arguments that are scattered throughout most cases thus making them manageable and understandable While there are an unlimited number of formats it is best to find one that suits your needs and stick to it It is important that a brief contain the following TITLE AND VENUE CONCISE RULE OF LAW A statement of the general principle of law that the case illustrates Determining the rule of law of a case is a procedure similar to determining the issue of the case Avoid being fooled by red herrings there may be a few rules of law mentioned in the case excerpt but usually only one is the rule with which the casebook editor is concerned The techniques used to locate the issue described below may also be utilized to find the rule of law Generally your best guide is the chapter heading It is a clue to the point the casebook editor seeks to make and should be kept in mind when reading every case in the respective section FACTS A synopsis of only the essential facts of the case which directly bear on to the issue The facts entry should be a short statement of the events that led one party to initiate legal proceedings against another in the first place While some cases conveniently state the salient facts at the beginning of the decision in other instances they will have to be culled from hiding places throughout the text even from concurring and dissenting opinions Some of the facts will often be in dispute and should be so noted Conflicting evidence may be brie y pointed up It is impossible to tell what is relevant until the entire case is read as the ultimate determination of the rights and liabilities of the parties may tum on something buried deep in the opinion The facts entry should seldom be longer than five sentences ISSUE A statement of the general legal question answered by or illustrated in the case For clarity the issue is best put in the form of a question capable of a yes or no answer In reality the issue is simply the Concise Rule of Law put in the form of a question The major problem presented in discerning what is the issue in the case is that an opinion usually purports to raise and answer several questions However except for rare cases only one such question is really the issue in the case Collateral issues not necessary to the resolution of the matter in controversy are handled by the court by language known as abiter dictum or merely dictum While dicta may be included later in the brief it has no place under the issue heading To find the issue the student again asks who wants what and then goes on to ask why did that party succeed or fail in getting it Once this is determined the why should be turned into a question Since many issues are resolved by a court in coming to a final disposition of a case the casebook editor will reproduce the portion of the opinion containing the issue or issues most relevant to the area of law under scrutiny HOLDING AND DECISION This section should succinctly explain the rationale of the court in arriving at its decision In summarizing the reasoning of the court it should always include an application of the general rule or rules of law to the specific facts of the case Hidden justifications come to light in this entry39 the reasons for the state of the law the public policies the biases and prejudices those considerations that influence the justices thinking and ultimately the outcome of the case At the end there should be a short indication of the disposition or procedural resolution of the case You may wish to put this portion of the brief in outline form CONCURRING AND DISSENTING OPINIONS Note the major objections to and qualifications placed on the court s opinion What are the key points of difference Do you agree with the criticisms expressed You should very brie y outline the reasoning in the dissents and concurrences EFFECT ON PRECEDENTS AND LATER CASES You should relate how the rule of law discernible from this case compares with that derived from earlier and later cases Where does this case fit in the series of cases which has shaped the relevant portion of the law


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