Professor Linder
CONSTITUTIONAL LAW I
Winter Semester, 2012
Course Syllabus
There is no required casebook.  For students with strong interests in constitutional law, a suggested reference for this course (as well as for Constitutional Law II and First Amendment Law) is Constitutional Law (8th Ed., 2009) by Nowak and Rotunda.  Nowak's and Rotunda's book is a traditional hornbook in the West series. 

I. INTRODUCTION AND HISTORY OF THE CONSTITUTION

TOPIC 1: The Nature and Structure of the Constitution

    Our first discussion will be based on the page, "INTRODUCTION TO THE STUDY OF CONSTITUTIONAL LAW." Read the Constitution.  Identify those provisions, if any, that confer power on: (1) the federal government, (2) the states, and (3) private individuals.  Identify those provisions, if any, that limit the power of: (1) the federal government, (2) the states, and (3) private individuals.  Are there provisions that seem to have little to do with issues of power?  What are the purposes of the provisions unrelated to power allocation?  Based on the text and structure of the Constitution, what seem to be its primary purposes?
TOPIC 2: Early Constitutional History: The Constitutional Convention of 1787 and Ratification of the Constitution, and the Origins of the Bill of Rights
    Our discussion will be based on the page, THE CONSTITUTIONAL CONVENTION OF 1787.  Read  "A More Perfect Union: The Creation of the U. S. Constitution" at the Library of Congress website.  The account can be accessed by clicking on the appropriate link (note that the essay includes several linked pages).  You also might wish to read  "The 200th Reunion of Delegates to the Constitutional Convention" (this piece need not be read for detail).  You should also spend some time exploring the other links posted on the page.  Be ready to discuss the following questions: Why was a Constitutional Convention necessary? Who were the delegates?  What sorts of interests did they represent?  What were some of the critical compromises reached in Philadelphia?  What major issues were left unresolved?
TOPIC 3:  The Role of the Supreme Court in American Government
We will also in this session to consider the role of the United States Supreme Court in American government.  Read materials on the SUPREME COURT IN THE AMERICAN SYSTEM  page.  We will discuss how the Court decides what cases to take, and how it decides the ones that it does accept.  We will discuss the cert process,  the briefing process, oral argument, Supreme Court conferences, and the preparation and significance of majority, concurring, and dissenting opinions.  We will also discuss briefly the make-up of the current Supreme Court and the process of nominating and confirming Supreme Court justices.

II. JUDICIAL REVIEW, THEORIES OF CONSTITUTIONAL INTERPRETATION, ARTICLE III POWERS OF THE FEDERAL COURTS

TOPIC 4: The Origins and Scope of Judicial Review / Theories of Constitutional Interpretation

TOPIC 5: The Doctrine of Standing

On the page CONSTITUTIONAL LIMITATIONS ON THE JUDICIAL POWER, read and be prepared to discuss the following cases relating to standing: Sierra Club v Morton, United States v SCRAP,  Lujan v Defenders of Wildlife, and Massachusetts v EPA.

TOPIC 6: Independent and Adequate State Grounds, Ripeness, and Mootness

On the page CONSTITUTIONAL LIMITATIONS ON THE JUDICIAL POWER, read and be prepared to discuss the following cases: Michigan v Long, Roe v Wade, DeFunis v Odegaard,
Poe v Ullman, and Epperson v Arkansas.

III.  POWERS OF CONGRESS AND THE EXECUTIVE BRANCH

TOPIC 7: The Powers of Congress

Please read materials on THE NECESSARY AND PROPER CLAUSE.  Read and be prepared to answer questions concerning the following cases: McCullough v Maryland,
U. S. v Gettysburg Electric Co., and U. S. v Comstock.

TOPIC 8: The Commerce Power
On the page FEDERAL COMMERCE POWER, read and be prepared to answer questions concerning the following cases:  Gibbons v Ogden, Wickard v Filburn, Heart of Atlanta Motel v U. S., Katzenbach v McClung, and Gonzales v Raich.
TOPIC 9: Reigning in the Commerce Power

On the page FEDERAL COMMERCE POWER, read and be prepared to answer questions concerning the following cases: U. S. v Lopez and U. S. v Morrison.  We will also discuss a case pending before the U. S. Supreme Court challenging the constitutionality of the federal health care reform law. Class Debate: Did Congress have the power under Article I to enact the Patient Protection and Affordable Care Act?

TOPIC 10: The Taxing, Spending, and Property Powers
On the page FEDERAL POWERS TO TAX AND TO SPEND, read and be prepared to answer questions concerning the following cases:  Linder v United States, U. S. v Kahriger, South Dakota v Dole, and Kleppe v New Mexico.

TOPIC 11: The Powers of the President

On the page  PRESIDENTIAL POWERS: AN INTRODUCTION, read and be prepared to discuss the following cases: Youngstown Sheet & Tube v Sawyer and Dames and Moore v Regan. On the page WAR AND TREATY POWERS, read and be prepared to discuss the following cases: Ex Parte Milligan and Ex Parte Quirin.  Skim Hamdi v Rumsfield.

TOPIC 12: Separation of Powers

On the page  SEPARATION OF POWERS, read and be prepared to discuss the following cases: INS v Chadha, Morrison v Olson,  United States v Nixon, and Clinton v Jones.
IV. OTHER STRUCTURAL LIMITATIONS ON THE POWERS OF THE FEDERAL GOVERNMENT

TOPIC 13:  The 10th Amendment and the State Sovereignty Doctrine

Read the introductory note and consider the questions on the page THE QUESTION OF STATE'S RIGHTS: THE CONSTITUTION AND AMERICAN FEDERALISM (AN INTRODUCTION).  On the page TENTH AMENDMENT LIMITATIONS ON FEDERAL POWER, please read and be prepared to discuss the following cases: Garcia v San Antonio Metropolitan Transit Authority, New York v United States, and Printz v United States.

V.  LIMITATIONS ON THE POWERS OF THE STATES

TOPIC 14:  The Supremacy Clause: Federal Preemption 
On the page THE SUPREMACY CLAUSE AND FEDERAL PREEMPTION, please read and be prepared to discuss the following cases: Silkwood v Kerr-McGee Corporation, Cipollone v Liggett Group, and American Insurance Ass'n v Garamendi.  We will also discuss a case pending before the U. S. Supreme Court involving review of Arizona's controversial immigration law.
TOPIC 15 (Two sessions):  The Commerce Clause as a Limitation on State Economic Regulation

On the page COMMERCE CLAUSE LIMITATIONS ON STATE REGULATION,  please read and be prepared to discuss the following cases: Cooley v Board of Wardens,  Edwards v California, and Philadelphia v New Jersey, Hughes v Oklahoma, Maine v Taylor, Hunt v Washington State Apple Advertising Commission, Granholm v Heald, Southern Pacific Co. v Arizona, and United Haulers v Oneida-Herkimer.

TOPIC 16:  The Commerce Clause and the "Market Participant Exception" and Discrimination Against Non-Residents


On the page COMMERCE CLAUSE LIMITATIONS ON STATE REGULATION,  please read and be prepared to discuss the following cases: Reeves v. Stake and South-Central Timber Development v Wunnicke.

On the page STATE DISCRIMINATION AGAINST NON-RESIDENTS, please read and be prepared to discuss the following cases: Baldwin v Montana Fish and Game Comm'n,  Hicklin v Orbeck, and Supreme Court of New Hampshire v Piper.


MID-TERM EXAMINATION (in class)

TOPIC 17: Introduction to the Bill of Rights and The Incorporation Debate

Read materials on the INTRODUCTION TO THE BILL OF RIGHTS to the adoption of the Bill of Rights.  What were the principal objections of the Anti-Federalists to the Constitution?  How were those objections countered? Compare Madison's original proposal for a Bill of Rights with the amendments actually adopted.  Examine the debates in the House and Senate concerning the proposed Bill of Rights.  What were the principal arguments for and against adoption of the Bill of Rights?  Think about the questions asked on the website and read Barron v Baltimore.

Read the INCORPORATION DEBATE page on the website, including the cases we will discuss:  Adamson v. California, Duncan v. Louisiana, and McDonald v Chicago.

TOPIC 18:  Applying the Bill of Rights to the States: The Fourth Amendment and Student Searches

Read the STUDENT SEARCHES page on the website.  Our principal cases will be New Jersey v. T.L.O. ,  Safford School District v Redding, Acton v. Veronia,  and Bd. of Education v Earls.


VI.  EQUAL PROTECTION AND DUE PROCESS UNDER THE 14TH (and 5TH, wrt the federal government) AMENDMENTS

TOPIC 19: Substantive Due Process--Is There a Liberty of Contract?
Read the LIBERTY OF CONTRACT page on the website.  Our principal cases will be Lochner v New York, Nebbia v New York, and Williamson v Lee Optical.
TOPIC 20 (Two Sessions): Substantive Due Process: The Right of Privacy

Read the RIGHT TO PRIVACY page on the website.  Our principal cases will be Griswold v Connecticut,  Ravin v State,  Kelley v Johnson, Lawrence v Texas, and Cruzan v Missouri Department of Health. 

TOPIC 21:  The Right to Abortion
Read the RIGHT TO ABORTIONS page on the website.  Our principal cases will be Roe v Wade and Planned Parenthood v Casey.

TOPIC 22:  Levels of Scrutiny Under the Equal Protection Clause

Read the LEVELS OF SCRUTINY UNDER THE EQUAL PROTECTION CLAUSE  page on the website.  Our principal cases will be Railway Express v New York, Kotch v River Port Pilot Commissioners, Skinner v Oklahoma, Korematsu v United States, and Loving v Virginia.
TOPIC 23:  Seperate But Equal Education
Read the SEPERATE BUT EQUAL EDUCATION page on the website.  Our principal cases will be Plessy v Ferguson, Missouri ex rel. Gaines v Canada, Brown v Board of Education, Brown v Board of Education (II), and Griffin v School Board of Prince Edward County. 
TOPIC 24: Proving Unconstitutional Discrimination
Read the PROVING UNCONSTITUTIONAL DISCRIMINATION page on the website.  Our prinicipal cases will be Yick Wo v Hopkins, Washington v Davis, and Arlington Heights v Metropolitan Housing Authority.
TOPIC 25: The Origins of the Intermediate Scrutiny Test for Gender Classifications
Read the THE ORIGINS OF THE INTERMEDIATE SCRUTINY TEST page on the website.  Our principal cases will be Craig v Boren and Michael M v Superior Court. 
TOPIC 26: Gender Equality in the Schools
Read the GENDER EQUALITY IN THE SCHOOLS  page on the website.  Our principal cases will be Mississippi Univ. for Women v Hogan and  United States v Virginia.
TOPIC 27: Affirmative Action
Read the AFFIRMATIVE ACTION page on the website.  Our principal cases will be Grutter v Bollinger, Parents Involved v Seattle, and Richmond v J. R. Croson.  You should skim Regents of the University of California v Bakke.
TOPIC 28: The Rational Basis Test "with Bite"
Read the SHOULD THE RATIONAL BASIS TEST HAVE BITE? page on the website.  Our principal cases will be Plyler v Doe, Cleburne v Cleburne Living Center, and Romer v Evans.
TOPIC 29:  The "Fundamental Rights" Strand of Equal Protection Law: The Right to Vote

Read the EQUAL PROTECTION AND THE RIGHT TO VOTE page on the website.  Our principal cases will be Kramer v Union Free School District, Bush v Gore, and Crawford v Marion County Election Board.

TOPIC 30 (Two Sessions): Procedural Due Process

Read the PROCEDURAL DUE PROCESS page on the website.  Our principal cases will be Board v Roth, Wisconsin v Constantineau, Paul v Davis, Vitek v Jones, Mackey v Montrym, Cleveland Board of Ed. v Loudermill, and Board of Curators of the University of Missouri v Horowitz.
VII. STATE ACTION

TOPIC 31: Racial Discrimination and the State Action Requirement

Read the RACIAL DISCRIMINATION AND THE STATE ACTION REQUIREMENT page on the website. Our principal cases will be  Evans v Newton, Evans v Abney, Shelley v Kraemer, Burton v Wilmington,  Moose Lodge v Irvin, and Edmonson v Leesville Concrete.
VIII.  REVIEW

Review: See TOPICS FOR STUDY on the website. You should also look at SAMPLE EXAMS and SAMPLE MULTIPLE CHOICE QUESTIONS.

FINAL EXAM (last day of class, with additional take home exam)

[GRADING: 30% mid-term, 40% in-class final, 30% take home]

Seating Chart for 2012

Exploring Constitutional Law Homepage