Political
Science 361
The
Constitution: Approaches to Interpretation
Course Syllabus
Instructor: Dave Dehnel Fall Semester, 2019-20
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. 2018. Constitutional Law for a Changing America: A Short Course. Seventh Edition. Washington, D.C.: CQ Press.
(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: Monday and Wednesday, 2:00-300; Tuesday and Thursday, 10:30-11:30
Feel free to contact me for an appointment at other times.
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. 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. Assignments turned in late will be penalized. Late assignments will not be accepted after the subsequent exam.
4. 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.
5. Please do not take bathroom breaks during class. This rule will be enforced during exams.
6. 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 two
mid-term exams (10% each) and a final exam (15%), 4 briefs (7% total), 4 discussion
questions (8% total), two turns as an attorney in mock Supreme Court (5% each),
four turns as a Supreme Court Justice (5% total), brief quizzes on mock Supreme
Court days (10% total), a modest research paper (15%), 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, 7th edition.
"CA" refers to the online case archive:
https://edge.sagepub.com/conlaw/resources/a-short-course
I. Introduction: Reading Supreme
Court Cases
Week One
9-4: Briefing a Case, Introduction to Constitutional Interpretation
Sample Brief of Lawrence v. Texas (handed out in class)
9-6: Kavanaugh replaces Kennedy on the Court—Should it Matter?
Readings: Wolf, “Abortion, race gay rights, death penalty: Supreme Court Nominee Brett Kavanaugh could make the difference”; EW, 556-570 (Lawrence and Obergefell cases); “Approaches to Constitutional Interpretation,” parts I and II (handout)
Brief #1: Obergefell v. Hodges
II. Modes of Constitutional Argument
Week Two
9-9: Constitutional Text and Original Intent
Readings: “Approaches to Constitutional Interpretation” (handout); EW, 99-110; United States v. Comstock (CA)
Brief #2: McCulloch v. Maryland
9-11: Wednesday: 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 in the opinions written by Justices Scalia, Stevens, and Kennedy in the D.C. v. Heller case.
9-13: 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?
Week Three
9-16: 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 (CA)
Brief #3: Kelo v. City of New London
9-18: Balancing Individual Rights against the Public Interest—Searches and Seizures
Readings: Terry v. Ohio (CA); Delaware v. Prouse; Michigan Department of State Police v. Sitz; Indianapolis v. Edmond (handouts)
Discussion Question #3: The test applied in the first three of these cases is described by Chief Justice Warren as “balancing the need to search against the invasion which the search entails.” What do the justices disagree about when applying this balancing test?
9-20: Balancing Individual Rights Against the Public Interest—National Security Surveillance
Readings: Katz v. United States; Ducat, “Note—The Foreign Intelligence Surveillance Act” (from Constitutional Interpretation, 9th Ed., pp. 706-711); Foreign Intelligence Surveillance Court Verizon order; Lichtblau, “In Secret, Court Vastly Broadens Powers of N.S.A”; Tau and Volz, “Secret Foreign Surveillance Court Denies More Applications” (handouts)
Week Four
9-23: Fundamental Values versus Judicial Restraint—the Right of Privacy
Readings: EW, 528-536; Bowers v. Hardwick (CA); EW, 564-570
Discussion Question #4: Compare the majority opinion in Griswold (written by Justice Douglas) with the majority opinion in Obergefell (written by Justice Kennedy). How are they similar? How are they different?
9-25: Conflict over
Fundamental Values—Reproductive Freedom and the Right to Life
Readings: EW, 536-547;
Planned Parenthood v. Casey (handout)
Brief #4: Roe v. Wade
9-27: The Supreme Court as a Legal and Political Institution
Readings: EW, 3-29
III. The Evolving Constitution: Federalism
Week Five
9-30: First Exam
10-2: Fundamentals
of Federalism
Readings: EW,
185-197; 217-231
10-4: The New Deal
Revolution in Federalism
Readings: EW,
231-249
Mock Supreme Court: NLRB
v. Jones and Laughlin Steel Corporation
Week 6
10-7: Recent
Interpretations of the Commerce Clause
Readings: EW,
249-257 and 264-268
Mock Supreme Court: Gonzales v. Raich
10-9: Symposium Day
10-11: More Recent
Interpretations of the Commerce Clause
EW, 257-263; U.S. v. Morrison (handout)
Mock Supreme Court: United
States v. Lopez
Mock Supreme Court: U.S. v. Morrison
Week Seven
10-14: The Power to
Tax and Spend
Readings: EW, 278-280 and 290-96; McCray
v. United States (CA); Bailey v.
Drexel Furniture (CA)
Mock Supreme Court: Bailey v. Drexel
Furniture
10-16: The
Affordable Care Act and the Commerce Clause
Mock Supreme Court: NFIB v. Sebelius on the commerce clause issue
10-18: 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
IV. The Evolving Constitution: Executive
Power
Week 8
10-21: Fall Break
Day
Readings: EW 168-172; Chauvin, “Evading
Constitutional Challenge: DAPA’s Implications
for Future Exercises of Executive Enforcement
Discretion” (handout)
Mock Supreme Court: The Steel Seizure Case
10-25: Executive Power in Time of War and Other
Emergencies
Readings: EW, 154-167 and 173-181; Estreicher and Moosman, “President
Trump’s Emergency Wall Declaration: A Guide to the Legal Issues” (handout)
Mock Supreme Court: Hamdi v. Rumsfeld
Week 9
10-28: Taking the
President to Court
Readings: EW,
143-155; McGrain v. Daugherty (CA); Nixon
v. Fitzgerald (CA); Savage, “The Subpoena and Contempt Fight Between Trump
and Congress, Explained” (handout)
Mock Supreme Court: Nixon
v. Fitzgerald
10-30: Applying the
Bill of Rights to the States
Readings: EW: 15-18;
Duncan v. Louisiana (handout); McDonald v. City of Chicago (CA)
Mock Supreme Court: McDonald v. City of Chicago
11-1: Second Exam
V. The Evolving Constitution
and Freedom of Expression
Week 10
11-4: Introduction
to the Research Paper Assignment
11-6: Freedom of Political Speech
Readings: EW,
432-446; Dissents of Holmes and Brandeis in Abrams
and Whitney (handout); Dennis v. United States (CA)
Mock Supreme Court: Dennis v. United States
11-8: Symbolic
Speech and the Right to Offend
Readings: United States v. Obrien (CA); EW,
446-456 and 461-66
Mock Supreme Court: Texas v. Johnson
Week 11
11-11: Student Free
Speech
Tinker v. Des Moines (CA); EW 456-461 and 466-470
Mock Supreme Court: Tinker
v. Des Moines
Mock Supreme Court: Morse v. Frederick
11-13: Writing About
Constitutional Law
Hamilton, “When Is
an LGBTQ Rights Case Not About LGBTQ Rights? When It’s the Masterpiece Cakeshop
Decision”
(https://verdict.justia.com/2018/06/07/when-is-an-lgbtq-rights-case-not-about-lgbtq-rights-when-its-the-masterpiece-cakeshop-decision)
Annotated Bibliography Due
11-15: Free Speech
Gets Expensive—Private Power in the Public Forum
Readings: EW,
721-729; Caperton v. A.T. Massey Coal (handout)
Mock Supreme Court: Caperton v. A.T. Massey Coal
Mock Supreme Court: Citizens United v. Federal Election
Commission
Week 12
11-18: The
Regulation of Political Money
Readings: Buckley v. Valeo (CA);
Randall v. Sorell
(CA); McCutcheon v. Federal Election Commission (CA)
Mock Supreme Court: McCutcheon v. Federal Election Commission (CA)
VI. The Evolving Constitution
and Communication Media
11-20: The Classic Role
of the Press
Readings: EW: 489-97;
New York Times v. United States (CA)
Mock Supreme Court: New York Times v. United States
11-22: Sex, Violence,
and Video Games
Readings: EW, 497-516;
United States v. Stevens (CA)
Mock Supreme Court: United
States v. Stevens
Mock Supreme Court: Brown
v. Entertainment Merchants Association
VI. The Evolving Constitution
and Church-State Relations
Week 13
11-25: Judicial
Protection of Free Exercise of Religion
Readings: EW, 376-395
Mock Supreme Court: Employment Division v. Smith
Wednesday and
Friday: Thanksgiving Break
Week 14
12-2: 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
12-4: Wednesday: Government
Support of Religious Institutions and the Establishment Clause
Readings: EW, 395-400
and 407-17
Mock Supreme Court: Zelman v. Simmons-Harris
Research Paper Due
12-6: Friday: Prayer in State Institutions
Readings: Engle v. Vitale (CA); Lee v. Weisman (CA); EW, 424-431
Mock Supreme Court: Lee v. Weisman
Mock Supreme Court: Town of Greece v. Galloway
Final Exam: Friday, December 13
Syllabus Supplement
Honor Code, Academic Accommodations, Credit hour policy
Honor Code: All students are required to abide by the principles of academic integrity that are articulated in the Honor Code of Augustana College. Every member of the Augustana community has the obligation to report violations of the Honor Code to the Honor Council. To view the Honor Code - including links to definitions of and statements on infractions, the Honor Pledge and composition of the Honor Council, and reporting forms - visit https://www.augustana.edu/academics/honor-code.
Students may consult outside sources when working on assignments, but must acknowledge the source of any ideas or wording that they use in the assignment.
The Honor Code defines plagiarism as follows:
Plagiarism is the misrepresentation of someone else’s research, thought, or writing as one’s own.
Plagiarism occurs when a student uses the ideas or phrasing of another individual or group and
presents the information as their own without crediting the original source.
Plagiarism includes, but is not limited to, the following:
1) Use of direct wording, artistic creations and/or expressions (written or musical) without proper acknowledgements
2) False Citation: incorrect or inadequate citation of sources
3) Purchasing, downloading, or using papers written by another individual
Academic Accommodations: All students enrolled in this class who have a
documented disability have the right to reasonable accommodations under the
American with Disabilities Act. Students requesting accommodations are required
to provide documentation of their disability to Kam Williams, the Director of
Disability Services, by filling out the “request for academic accommodations”
form on the link provided: https://www.augustana.edu/student-life/residential-life/accommodations. Please present the Accommodation Letter to me after
class, during office hours, or over email in the first week of the term and
remind me at least seven days before needing the accommodations. Students who
have or think they may have a disability are invited to contact Kam
Williams for a confidential discussion. For more information, please
contact kamwilliams@augustana.edu or visit room 314 of the Tredway Library.
Credit Hour Policy: In accordance with federal policy,
Augustana defines a credit hour as the amount of work represented in the
achievement of learning outcomes (verified by evidence of student achievement)
that reasonably approximates one hour (50 minutes) of classroom or direct
faculty instruction and a minimum of two hours of out-of-class student work. Each
standard, four-credit course at Augustana meets Monday-Wednesday-Friday for 75
minutes each day (225 minutes/week) or Tuesday-Thursday for 100 minutes each
day (200 minutes/week) for approximately 14 weeks (one semester). Each standard
course requires 8-10 hours of out-of-class student work per week.