Colby College

Department of Government

 

Government 313:  National Powers and Federalism in American Constitutional Law

 

 

Fall 2006                                                                                             MW 1:00-2:15 pm

 

Professor Joseph R. Reisert                                                                859-5316

259 Miller Library                                                                               jrreiser@colby.edu

Office Hours: Thursdays 2-4

 

 

ÒWe must never forget that it is a constitution we are expounding.Ó  Thus declared Chief Justice Marshall in the 1819 decision, McCulloch v. Maryland, and MarshallÕs successors in every age have cited this dictum again and again.  But what is a constitution?  What does it mean to expound it?  What is Òthe constitutionÓ to be expounded—is it only what is included in the text of the Constitution of the United States? Or are the principles of the Declaration of Independence included—or other principles?  Who should expound it—the courts only, or the President and other elected officials also, or the citizenry at large?  How should the constitution be interpreted so that it can be properly expounded?

 

These questions, which at various times in our history have seemed to be settled, nevertheless inevitably recur in times of political crisis and change.  Several great crises in our history have produced drastic reconsiderations of our constitutional principles, with far-reaching consequences for the structure of our regime.  By examining Supreme Court decisions and other constitutional materials, this course examines the basic principles of American constitutional government — chiefly with respect to the scope of Presidential powers and the powers of Congress (individual rights and civil liberties are the topic of GO 314, to be offered next in the spring of 2007).

 

Particular attention will be given to three great historical crises and to the present:  the failure of the Articles of Confederation and the adoption of the Constitution, the failure of the CourtÕs effort to settle the issue of slavery and the subsequent Civil War and Reconstruction, and the controversy over the extent of the Federal governmentÕs powers provoked by the New Deal.  A flurry of recent Supreme Court opinions on the subject of federalism leads us to ask whether we are in the midst of a new constitutional transformation or whether this new era of federalism will prove to be a short-lived aberration from the general historical trend towards increasingly national governance.

 

A separate unit will be devoted to Executive power in American Constitutional Law and its relationship to the war powers of Congress — a topic that has become increasingly significant since the events of 9/11/2001 and the declaration of a Òwar on terror.Ó

 

This course has three principal objectives:  (1) to familiarize students with important constitutional arguments (made in the Supreme Court and elsewhere) regarding the scope of Congressional and Presidential powers, (2) to enable students to formulate and articulate their own constitutional arguments, particularly on the issues of national power and federalism, and (3) to illustrate and explain the complex and dynamic relationship between politics and law characteristic of constitutional government.

 

 

The Assignments

 

Participation and Attendance (25%):  You are expected to attend every class, having already completed and thought about the assigned readings.  In order to facilitate appropriate preparation for class, and in order to encourage outside-the-classroom discussion and debate about the assigned materials, I am creating an electronic discussion list for the course.  I will give you more details about this once it is set up.

 

In the first full week of class (beginning September 11), I will be asking everyone to prepare briefs on McCulloch v. Maryland in lieu of contributing to the electronic bulletin board.  These are to be submitted to me, via email, not to the class list.  I want everyone to have a chance to begin learning how to analyze and take notes on legal arguments, without having to worry about being self-conscious before their peers.

 

Starting with the readings for the second full week of class (beginning September 18) everyone will be expected to contribute a minimum of 250 words per week (a bit less than a page) to the bulletin board/discussion list.  Ideally, everyone will feel equally comfortable participating orally and electronically.  However, those who cannot bring themselves to speak frequently in class may choose to contribute more on-line, so as to make up for the shortfall in classroom participation. 

 

This written, electronic participation may take a number of forms, but in order to get things going I will send an email to the list at the end of the previous class with a couple of questions I think are important and worth discussing.  You will be able to write responses to these questions, or to pose other questions of your own, either to me or to your fellow students, and to answer questions posed by your fellow students. 

 

In addition, I will assign one student to post to the list a brief of each case assigned (starting with Stuart v. Laird and Marbury); briefs for all but the shortest cases should suffice to meet your on-line participation obligation for the week.  Briefs for Monday classes should be posted by 5 pm the previous Friday, and briefs for Wednesday classes should be posted by 5 pm the previous Tuesday.  (On-list participation, therefore, may also take the form of suggesting revisions/corrections to the posted briefs). 

 

If you miss a class, you must write an additional 750 word (approx 2 1/2 pages) response to one of the questions I distribute, or (with approval) on some other topic of your own  devising.

 

Persistent absenteeism, however, may lead to expulsion from the course with a failing grade.

 

Short paper (15%):  A paper not to exceed 1800 words (approximately 6 pages), due on October 6.  Detailed information about the assignment will be distributed in class on Monday, September 26.

 

Moot Court Exercises (40% total; 20% each): Two in-class simulations of a constitutional argument (either a Supreme Court oral argument, or some other constitutional debate conducted elsewhere in the government), featuring a hypothetical case designed to illuminate some important themes in the course.  Students selected as advocates will prepare briefs for their assigned position; these will be due in advance of the moot court exercise and distributed to the rest of the class.  During the moot court exercise, the advocates will present their arguments orally and answer questions prepared by the judges.  The judges will prepare their own constitutional opinions, which will be due the Friday following the moot court exercise.  To reward them for writing their papers early, advocates will receive a bonus of 1/3 of a grade.  Briefs and opinions are not to exceed 2400 words (approximately 8 pages). 

 

Comprehensive Final Examination (20%):  The final exam is Òcomprehensive,Ó meaning that it covers material from the beginning to the end of the course.  It will require both detailed knowledge of the arguments and holdings of the assigned cases and the ability to construct written essay arguments about the significance of and relationship among the cases and other constitutional materials examined in the course.

 

Note that failure to complete any major component of the course (e.g., not submitting required written work, including on-line participation, or skipping the final exam) normally entails failing the course as a whole—regardless of performance on the completed components.

 

 

Required Text

 

Brest, Levinson, Balkin, Amar, and Siegel Processes of Constitutional Decisionmaking, 5th. edition.  New York: Aspen Publishers, 2006.

 

 

Other Resources

The full texts of all opinions of the Supreme Court are available in bound volumes located on the main level of Miller Library (for those of you who prefer to consult printed books).

 

The full texts of many Supreme Court cases are also available on-line:

á      All cases from 1990 to the present and a selection of historically significant cases are available at www.law.cornell.edu.

á      The full texts of all Federal court decisions are available on-line from Lexis-Nexis (web.lexis-nexis.com/universe).   Colby maintains a subscription to this service.

á      The U.S. Supreme Court maintains its own website.  www.supremecourtus.gov.

á      The Medill School of Journalism at Northwestern University maintains a helpful site, called On the Docket, featuring information on upcoming Supreme Court cases: docket.medill.northwestern.edu.

 

The editors of our casebook also maintain their own website, which includes some links and other materials that may be of interest to you:  www.conlaw.net.

 

 

Schedule of Readings

 

I.  The Constitution, the Court, and Judicial Review

 

Sep 6 (W):          Introduction — Law and Constitutionalism

Declaration of Independence, handout

Articles of Confederation, handout

The Constitution of the United States, BLBAS 1-29

Briefing cases, handout

 

Sep 11 (M):        The Bank of the United States: A Case Study, part I

McCulloch v. Maryland, part I, BLBAS 27-67

 

Assignment:  Brief of McCulloch, part I due (to me, via email) by 9 am

 

Sep 13 (W):        The Bank of the United States: A Case Study, part II

McCulloch v. Maryland, part 2, BLBAS 67-84

 

Assignment:  Brief of McCulloch, part II due (to me, via email) by 9 am

 

Sept 15 (F):        Assignment:  Revised brief of McCulloch (entire) due (to me, via email) by 4 pm

 

Sep 18 (M):        The Election of 1800 and its Aftermath

Stuart v. Laird, BLBAS 97-108

Marbury v. Madison, BLBAS 108-138

 

II. The Early Republic

 

Sep 20 (W):        Property Rights and the Natural Law Tradition

Fletcher v. Peck, BLBAS 140-148

Calder v. Bull, BLBAS 148-153

 

Sep 25 (M):        Native Americans and Slaves in the Early Republic

                                 The Antelope, BLBAS 153-156

                                 GrahamÕs Lessee v. William MÕIntosh, BLBAS 156-157

                                 Cherokee Nation v. Georgia, BLBAS 157-161

 

Sep 27 (W):        The Marshall Court on Property and Commerce

Gibbons v. Ogden, BLBAS 168-178

Willson v. Black Bird Creek Marsh Co., BLBAS 179-186

 

III.  The Taney Court and the Civil War

 

Oct 2 (M):          The Taney Court on State and Nation

Mayor of New York City v. Miln, BLBAS 187-203

Cooley v. Board of Wardens, BLBAS 203-206

Pennsylvania v. Wheeling & Belmont Bridge, BLBAS 206-208

Corfield v. Coryell, BLBAS 208-210

Crandall v. Nevada, BLBAS 210-212

 

Oct 4 (W):          Federalism and Slavery

Groves v. Slaughter, BLBAS 213-217

Prigg v. Pennsylvania, BLBAS 217-228

 

Oct 6 (F):           Short Paper Due in Miller 253 (Government department office) by 3 pm

 

Oct 9 (M):          Were Slaves Persons or Property under the Antebellum Constitution?

   Dred Scott v. Sandford, BLBAS 229-260

 

IV.  From Reconstruction to the New Deal

 

Oct 11 (W):        The Reconstruction Constitution

History of the Adoption of the Fourteenth Amendment, BLBAS 301-319

The Slaughter-house Cases, BLBAS 320-337

The Civil Rights Cases, BLBAS 373-385

 

Oct 16 (M):        No class session – Fall Break

 

Oct 18 (W):        What rights does the Fourteenth Amendment protect?

Lochner v. New York, BLBAS 412-431

Adkins v. ChildrenÕs Hospital, online

 

Oct 23 (M):        Congressional Regulation of Interstate Commerce

United States v. E.C. Knight Co., online

Champion v. Ames, BLBAS 435-441

Hammer v. Dagenhart, BLBAS 441-449

Schechter Poultry v. United States, online

 

Oct 25 (W):        The Original Understanding of the Constitution and Crises of the Modern Economy

                                 Note: An Excursion into Louisiana, BLBAS 64-67

Legal Tender Cases, BLBAS 291-299

Progressive Era Amendments, BLBAS 471-476

Constitutional Limits on Article V? BLBAS 477-483

Home Building and Loan Association v. Blaisdell, BLBAS 499-510

 

Oct 30 (M):        The ÒRevolution of 1937, Part I:  Economic Due Process

West Coast Hotel v. Parrish, BLBAS 510-513

U.S. v. Carolene Products, BLBAS 513-520

Williamson v. Lee Optical, BLBAS 520-527

 

Nov 1 (W):         The ÒRevolutionÓ of 1937, Part II:  Congressional Power

National Labor Relations Board v. Jones & Laughlin Steel, BLBAS 549-550

U.S. v. Darby, BLBAS 551-553

Wickard v. Filburn, BLBA 553-558

Heart of Atlanta Motel v. United States, BLBAS 559-560

Katzenbach v. McClung, BLBAS 560-562

Daniel v. Paul and Perez v. United States, BLBAS 562-564

 

V. A Revival of Federalism?

 

Nov 6 (M):         The Commerce Power and The Power to Tax and Spend

U.S. v. Lopez, BLBAS 600-627

Child Labor Tax Case, BLBAS 449-453

United States v. Butler, BLBAS 453-456

South Dakota v. Dole, BLBAS 627-629

 

Nov 8 (W):         Regulating State Governments I

National League of Cities v. Usery, BLBAS 649-653

Garcia v. San Antonio Metropolitan Transit Authority, BLBAS 653-663

Gregory v. Ashcroft, BLBAS 663-674

 

Nov 13 (M):       Regulating State Governments II

New York v. United States, BLBAS 674-692

Printz v. United States, BLBAS 693-711

US Term Limits, Inc. v. Thornton, BLBAS 711-729

 

                                       Briefs (Exercise #1) due via email (to me) by noon

 

Nov 15 (W):       Moot Court Exercise #1 held in class

 

Nov 17 (F):        Opinions (Exercise #1) due in Miller 259 by 4:00 pm

                            

VI. Executive Power

 

Nov 20 (M):       Early Cases through the Civil War

                                    Little v. Barreme, BLBAS 138-140

                                    Barron v. United States, BLBAS 161-164

                                    The Debate Over Secession, BLBAS 261-271

                                    The Prize Cases, BLBAS 271-275

 

Nov 22 (W):       No Class Session —Thanksgiving Recess

 

Nov 27 (M):       Executive Power in the Civil War II

                                    Ex Parte Merryman, BLBAS 276-279

                                    Emancipation, BLBAS 279-287

                                    Ex Parte Milligan, BLBAS 287-291

 

Nov 29 (W):       Emergency Powers and Executive Detention

Youngstown v. Sawyer, BLBAS 819-841

Hamdi v. Rumsfeld, BLBAS 841-863

Rumsfeld v. Padilla, BLBAS 863-871

 

Dec 4 (M):         Military Tribunals

Ex parte Quirin, BLBAS 871-881

Johnson v. Eisentrager online

Hamdan v. Rumsfeld, online

 

                                       Briefs (Exercise #2) due via email (to me) by noon

 

Dec 6 (W):         Moot Court Exercise #2 held in class

 

Dec 8 (F):          Opinions (Exercise #2) due in Miller 259 by 4:00 pm

 

 

A Comprehensive Final Examination will be held at the scheduled time