Political Science 361

Constitutional Law I:

Approaches to Interpretation

Course Syllabus

Instructor: Dave Dehnel | Fall 2018

Alright, I know the forefathers said you have the right to own a gun. But they also said you could own people!...Look, the Constitution is like our grandfather. He’s wise. We love him. And he means well, but he’s getting really really old, and every once in a while he says something crazy, and we gotta go to the other room and discuss what we’re gonna do about him.”

--Michael Che, SNL

Why study constitutional law? Two reasons: The United States Supreme Court makes decisions on important and interesting issues, and it explains its decisions by publishing carefully reasoned arguments. Therefore, by studying constitutional law we sharpen our critical reading and thinking skills while analyzing important political issues.

The primary texts for this course are decisions of the Supreme Court interpreting the United States Constitution. In these cases, the members of the Court debate the powers of the government (legislative, executive, and judicial) and the rights of individuals (including freedom of speech and press, freedom of religion, and the right to privacy).

Interpreting the constitution involves a combination of law and politics. Supreme Court justices explain their decisions in terms of legal criteria, including the text of the law, the intent of the framers, and precedent. In controversial cases, however, these legal factors rarely produce a definitive result. Given the presence of uncertainty in the law, it is not surprising that political scientists have discovered ample evidence to show that politics shapes Supreme Court decisions.

Although political judgment is an unavoidable part of Supreme Court decision making, the members of the Court nonetheless offer written legal explanations for their decisions (called “opinions”). A careful reading of these explanations can reveal a lot about the political judgments that underlie the result in the case. Members of the Court build their legal arguments from their own assessments of what works best for society, what values are most important, and what they think the role of courts in the political system should be. As we read and analyze the cases, we will consider these more political criteria of interpretation alongside the legal ones.

Required Text

Epstein, Lee, and Thomas Walker. Constitutional Law for a Changing America: A Short Course, Seventh Edition (Washington, D.C.: Sage-CQ Press, 2018).

(Note: you will also need access to the web-based case archive that goes along with the book.)

Contacting Me Outside of Class

Office: 312 Old Main Phone: 794-7235 E-mail: daviddehnel@augustana.edu

Office Hours: Feel free to contact me for an appointment or drop by. The best times to catch me are Mondays and Wednesdays from 4:00-5:00 and Tuesdays and Thursdays from 9:30-11:30. (I do occasionally have meetings at 10:30 on Tuesday or Thursday.)

Rules and Policies

1. Regular attendance is required. Students who miss class are responsible for finding out about any assignments, handouts, etc. that they missed.

2. Assignments turned in late will be penalized. Briefs and discussion questions are due at the beginning of class, or they may be submitted by email before the class period begins. I recommend email submission.

3. Students who miss an exam without prior permission will be penalized. If some form of personal disaster prevents you from making it to an exam, to be eligible for a make-up, you must notify me of your problem before the beginning of the exam.

4. Please do not take bathroom breaks during class. This rule will be enforced during exams.

5. Use of electronic devices for non-class purposes is inappropriate.

Learning Objectives

1. Understand the elements of legal argument (the criteria for interpreting the law) and how to apply those elements to real cases.

2. Recognize the uncertainly inherent in constitutional interpretation and the space this creates for your own voice in the debate.

3. Undertake critical analysis of constitutional issues by assessing the use of legal criteria and constitutional doctrine in Supreme Court decisions.

These learning objectives relate to the Augustana Student Learning Outcomes in several ways. In particular, the focus will be on the outcome labeled “Analyze,” as in, to critique and construct arguments. We will also be practicing skills of reading, writing and speaking.

Grades

Grades will be based on three exams (10% for the first two, 15% for the final), 4 briefs (10% total), 4 of 5 of discussion questions (10% total), one turn as an attorney in our Mock Supreme Court (15%), two turns as a Supreme Court Justice (5% total), short assignments and quizzes on Mock Supreme Court days (15% total), and class attendance and participation (10%).

Course Outline, Schedule of Assignments

In the following, "EW" refers to Epstein and Walker, Constitutional Law for a Changing America: A Short Course, 7^th edition.

"CA" refers to the online case archive:

https://edge.sagepub.com/conlaw/resources/a-short-course

I. Introduction: Reading Supreme Court Cases

8-20: Briefing a Case, Introduction to Constitutional Interpretation

Sample Brief of Lawrence v. Texas (handed out in class)

8-22: The Retirement of Justice Kennedy—Should it Matter?

Readings: EW, 3-29 and EW, 556-570 (Lawrence and Obergerfell cases)

Brief #1: Obergefell v. Hodges

II. Modes of Constitutional Argument

8-24: Constitutional Text and Original Intent

Readings: “Approaches to Constitutional Interpretation” (handout); EW, 99-110; United States v. Comstock (CA)

Brief #2: McCulloch v. Maryland on the constitutionality of the Bank of the United States

8-27: Constitutional Text and Original Intent—The Second Amendment

Readings: EW, Chapter 15 and United States v. Miller (in the Case Archive, click on chapter 15)

Discussion Question #1: Compare the different approaches to analyzing the intent of the framers in D.C. v. Heller.

8-29: Precedent—Freedom of Association and the Right to Exclude

Readings: EW, 37-38 (“Stare Decisis”); Roberts v. U.S. Jaycees (CA); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (CA); EW, 470-477 (“Expressive Association”)

Discussion Question #2: How does the constitutional issue raised in the case of Boy Scouts v. Dale relate to the issues raised in the Roberts and Hurley cases?

8-31: Precedent—Two Issues involving Private Property and the Power of Government

Readings: Berman v. Parker, 348 U.S. 26 (1954); EW, 360-368; Riley v. California (handout)

Brief #3: Kelo v. City of New London

9-3: No class meeting.

9-5: Balancing Individual Rights Against the Public Interest—Searches and Seizures

Readings: Terry v. Ohio; Delaware v. Prouse; Michigan Department of State Police v. Sitz (handouts)

Discussion Question #3: The test applied in these cases has been stated by as “balancing the extent of the intrusion against the need for it.” What do the justices disagree about when applying this balancing test?

9-7: The Right of Privacy and Constitutional Interpretation

Readings: EW, 528-545

Brief #4: Roe v. Wade

9-10: The Right to Privacy on the Brink

Readings: EW, 546-554, handout on the replacement of Justice Kennedy

9-12: First Exam

III. The Evolving Constitution: Executive Power

9-14: Taking the President to Court

Readings: EW, 144-155; News articles on Trump civil suits and the Russia investigation

9-17: Friday: Executing the Law

Readings: EW 168-173; News articles on DACA and the Antiquities Act

Mock Supreme Court: The Steel Seizure Case

IV. The Evolving Constitution: Federalism

9-19: The New Deal Revolution in Federalism

Readings: EW, 223-231 and 241-253

Discussion Question #4: Compare the constitutional reasoning in Hammer and Darby.

9-21: Recent Interpretations of the Commerce Clause

Readings: EW, 257-268; U.S. v. Morrison (handout)

Mock Supreme Court: Gonzales v. Raich

9-24: The Power to Tax and Spend

Readings: EW, 290-96; McCray v. United States (CA); Bailey v. Drexel Furniture (CA)

Discussion Question #5: Explain how taxing and spending becomes a tool for regulation in McCray, Bailey, and Dole.

9-26: The Affordable Care Act and the Commerce Clause

Readings: EW, 268-276

Mock Supreme Court: NFIB v. Sebelius on the commerce clause issue

9-28: The Affordable Care Act and the Power to Tax and Spend

Readings: EW, 296-303

Mock Supreme Court: NFIB v. Sebelius case on the taxing and spending clause issues

V. The Evolving Constitution: Freedom of Expression

10-1: Free Speech Gets Expensive—Private Power in the Public Forum

Readings: EW, 721-729; Caperton v. A.T. Massey Coal (handout)

Mock Supreme Court: Citizens United v. Federal Election Commission

10-3: The Regulation of Political Money

Readings: Buckley v. Valeo (CA); Randall v. Sorell (CA); McCutcheon v. Federal Election Commission (CA)

Mock Supreme Court: Randall v. Sorell

10-5: Second Exam

10-8: Freedom of Political Speech

Readings: EW, 432-446; Dissents of Holmes and Brandeis in Abrams and Whitney (handout); Dennis v. United States (CA)

10-10: Symbolic Speech and the Right to Offend

Readings: United States v. Obrien (CA); EW, 446-456 and 460-66

Mock Supreme Court: Texas v. Johnson

10-12: Student Free Speech

Tinker v. Des Moines (CA); EW 457-460 and 466-470

Mock Supreme Court: Morse v. Frederick

VI. The Evolving Constitution and Communication Media

10-15: The Classic Role of the Press

Readings: EW: 489-90; New York Times v. United States (CA)

Mock Supreme Court: New York Times v. United States

10-17: Sex, Violence, Video Games, and the Internet

Readings: EW, 500-516; United States v. Stevens (CA)

Mock Supreme Court: Brown v. Entertainment Merchants Association

VII. The Evolving Constitution and Church-State Relations

10-19: Judicial Protection of Free Exercise of Religion

Readings: EW, 376-395

Mock Supreme Court: Employment Division v. Smith.

10-22: Congressional Protection of Free Exercise of Religion

Readings: City of Boerne v. Flores (CA); Cutter v. Wilkinson (CA); Burwell v. Hobby Lobby Stores (CA)

Mock Supreme Court: Burwell v. Hobby Lobby Stores

10-24: Government Support of Religious Institutions and the Establishment Clause

Readings: EW, 395-418

Mock Supreme Court: Zelman v. Simmons-Harris

10-26: Prayer in State Institutions

Readings: Engle v. Vitale (CA); Lee v. Weisman (CA); EW, 424-431

Mock Supreme Court: Town of Greece v. Galloway

Final Exam: Monday, October 29, 9:00 a.m. to 11:00 a.m.