SS 3660 -- American Constitutional Law
Spring 2008
Rev. Schedule of Course
Last Update: 1/31/2008 http://www.social.mtu.edu/faculty/speters/SS3660Spr08_Home.htm
Susanna Peters
Office: 218 Academic Office Bldg
Office Phone: 487-2391
Office Hours: T/Th 1-2, Weds 2-3, or by appt.
Class Meets: T/Th 2:05 -3:20
Course Schedule:
Experience show that this schedule is
subject to change as course and student demands evolve. Changes will be announced in class and via
email.
Note: Unless otherwise indicated, page numbers
refer to the material in your text, “Constitutional Law for A Changing America.”
Part I: Institutional Powers and
Constraints: Executive, Judiciary,
Legislative, Commerce Power, Federalism
Tues Jan 15 Constitutional
Powers and Constitutional Rights – Who has the Power?
Introduction
to Course and Requirements, Review Constitutional grant of rights and powers (use
exercise 1 via Kaplin p. 41 TBD)
Thurs Jan 17 Constitutional
History and Interpretation:
Discuss
Opposing Posner/Bork views of Interpretation
Discuss
Case Briefs – with short example
·
Read Intro pp. 3-9:
“The Road to the Constitution” for background on formation of the Constitution
after the Articles of Confederation
·
Read Chap 1 p.
11-19: “The Living Constitution”
·
Read Chap 2 p
30-38: “Theories of Supreme Court
Decision Making”
Optional
·
Skim – if interested
Chap 2 pp. 20-30 (Explaining how cases get to the Supreme Court and details of
the review process)
·
Optional: Michael C. Dorf, “Harry Potter and the
Framers Intent,” Findlaw Writ, Oct 22,
2007 http://writ.news.findlaw.com/dorf/20071022.html
To Do For In Class Discussion/Exercise
(you will not hand in): Consult the
Constitution in the Text’s Appendix and answer the following questions (Adapted
from W. Kaplin, p. 52)
1)
Identify the
Constitutional Provisions that you think have the clearest Language, being
neither ambiguous nor vague and conveying clear meaning in all or most of their
applications.
2)
Identify the
Constitutional Provisions that you think are most ambiguous or vague, and there
fore convey no definite meaning in many of their applications. Concentrate
particularly on these provisions – Art I, sec 6 cl 2 (ineligibility), (b) Art I
sec 8 cl 3 (commerce clause) (c) Art I sec 9, cl 3 (bill of attainder), (d) 6th
amendment jury trial and right to counsel. Try to determine what words are
ambiguous or vague, and describe the ambiguities in these words or phrases.
Tues Jan 22 Separation of Power – Checks and Balances
& the Judicial Role
·
Read Chap 3 pp.
53-76 (Marbury v. Madison (1803), p. 61; ExParte McCardle (1869) p 71) and City of Boerne v. Flores ___ US___ (1997) (avail on CQ/class
website for Chap 3 < http://clca.cqpress.com/short/Boerne.htm>)
·
Complete case
Brief of Boerne v.
·
Read Kyllo (see readings section of
webpage)or CQ press http://clca.cqpress.com/rights/kyllo.htm
Assignment I due: See Assignments page for instructions http://www.social.mtu.edu/faculty/speters/SS3660Spr08_Home.htm
Optional
·
Joanne Mariner,
Oct 25, 2006 “The Military Commissions Act of 2006 – A Short Primer” From
Findlaw’s Writ, http://writ.lp.findlaw.com/mariner/20061025.html
·
Michael C. Dorf,
“What is at Stake in the Latest Guantanamo Bay Case” Dec 5, 2007, Findlaw Writ http://writ.news.findlaw.com/dorf/20071205.html
Dorf’s
earlier article (2/28/2007) on Jurisdiction Stripping and Boumediene v. Bush at http://writ.news.findlaw.com/dorf/20070228.html
Thurs Jan 24 Power
of the Legislature – Congress (Immunities, Source and Scope of Powers (Chap 4)
·
Read Chap 4 pp
82-86 and 94-121 (speech and debate, McCollouch v.
·
Complete Case brief of - Mistretta
p. 114 OR Chadha p. 117 (this is not to be turned in)
·
Review Boerne
(reading from Tues)
Tues Jan 29 Executive
Power and Immunities (Chap 5) - “Take care that the laws are faithfully
executed”
Assignment 2 Due http://www.social.mtu.edu/faculty/speters/SS3660Spr08_Home.htm
·
Read Chap 5 p
122-142 (summary of powers and problem of Line Item veto) (
·
Read: John Dean,
“The Problem with the Presidential Signing Statements: Their Use and Misuse by
the Bush Administration” Findlaws Writ, Jan
13, 2006 http://writ.news.findlaw.com/scripts/printer_friendly.pl?page=/dean/20060113.html
·
Read: Douglas Kmiec: “Its Not Just Alito’s Quandary:
Reconciling Executive and Legislative Power” Find law Writ Jan 16, 2006
(positive view of signing statements) http://writ.news.findlaw.com/commentary/20060116_kmiec.html
·
Optional: For more information on use of Presidential
Signing Statements and un annotated text of the statements: See CoherentBabble.com
at http://www.coherentbabble.com/signingstatements/pressignstate.htm
or CRS report 9/17/2007 “Presidential Signing Statements, Constitutional and
Institutional Implications” http://www.fas.org/sgp/crs/natsec/RL33667.pdf
Thurs Jan 31 Executive
Power Cont - Foreign Affairs and National Emergencies
Korematsu -In class watch Steven Ozaki’s Documentary
“Unfinished Business” the story of Korematsu Case
·
Read p.
146-158 (The President and Foreign
Affairs, Korematsu (1944))
·
Start to read
chap 15 pdf (from Mason) on readings site (Skim introductory material, focus on
cases starting at p 689 -- Milligan,
Quirin, Korematsu, US v. US Dist.Ct, Hamdan)
·
Optional -- if
interested read Hyribashi v
Tues Feb 5 Executive
Power cont – Foreign Affairs and National Emergencies
· Assignment 3 Due http://www.social.mtu.edu/faculty/speters/SS3660Spr08_Home.htm
·
Finish reading
chap 15 pdf (from Mason) on readings site (Skim introductory material, focus on
cases starting at p 689 – 705: Milligan,
Quirin,
·
Chap 5 pp
159-162,
·
Review the
Congressional “Authorization for the Use of Military Force” (“AUMF”), passed
107th Congress here: http://news.findlaw.com/hdocs/docs/terrorism/sjres23.enr.html
·
Read Sabato, “A
More Perfect Constitution”, Preface& Chap 1 to page 53 only.
Optional
·
“The Facts Don’t
Matter -- Straight Eye on the Quirin Guys” audio play by Ira Glass (36
minutes), This American Life, Episode 260 3/12/2004 or http://thisamericanlife.org/Radio_Episode.aspx?episode=260
·
Listen to
President Truman’s Broadcast Arguing for the need of Govt. operation of the
Steel Plants dated April 8, 1952. Note
-- this Broadcast that gave rise to the Steel Seizure cases (Youngstown Sheet
and Tube pp. 159). Recording at http://www.trumanlibrary.org/educ/steel.htm
·
Transcript of Quirin Tribunal proceedings http://www.soc.umn.edu/~samaha/nazi_saboteurs/indexnazi.htm
·
Hamdi v.
Rumsfeld, (2004) (text p. 163) (due process requires that Hamdi, a
FISA and NSA Wiretap Controversy
·
NSA Spying
Controvery: Letter to Congress (claiming warrantless wiretaps exceed executive
authority), dated Feb9, 2006, excerpted here
http://www.nybooks.com/articles/18650
·
DOJ letter supporting President’s wiretaps dated Dec 22, 2005 here http://www.eff.org/files/filenode/nsaspying/doj_letter.pdf
·
Elanie Cassel, “The Congressional
Research Service and Constitutional Law Scholars Weigh in on President Bush's
Authorization of Warrantless Surveillance:
Why This Controversy Bridges the Partisan Divide, At Least
Among Experts” Jan 12, 2006 http://writ.news.findlaw.com/cassel/20060112.html
·
Read Lazarus, “How Much Authority Does the President Possess When He Is Acting as
"Commander In Chief"? Evaluating
President Bush's Claims against a Key Supreme Court Executive Power Precedent (
Note:
If you can’t get the Mason pdf you can read slightly longer versions of
the cases in our text pp. 146-158 and in
the sources below.
·
Ex Parte Quirin (1942) (avail CQ Website Chap 5/course
site http://clca.cqpress.com/short/Ch5ExParteQuirinR.htm)
·
Ex parte Milligan (1866) (avail on CQ website Chap 5)
·
Hamdan v. Rumsfeld, 548
Thurs Feb 7 No class – Winter Carnival (Read rest
of Chap 1 (pp 53-75 and Chap 2 (pp 75-107)in Sabato.
Tues Feb 12 Federalism – Chap 6
Assignment
4 Due (TBA)
Read:
Chap 6: 173-193, 198-204
(Includes -- McCulloch v.
The
Reemergence of National Supremacy – Cooperative
Federalism -
The
Return of Dual Federalism (198), Printz v.
Video: If time in class we will view “Eyes
on the Prize – Episode II -- Fighting Back” (Alternative: Crisis -- Kennedy Video)
Thurs Feb 14 The Commerce Power -Chap 7
Read Chap 7: 205-208 (omit Gibbons), 215-219 (omit Schecter,)
223-225
(omit NLRB v. Laughlin)
231-43
(read Lopez (1995) p.233 and Heart of Atlanta (1964) p. 240
Gonzales
v. Raich (2005), avail on CQ website
Think
About it -- Federalism Discussion Questions:
Consider
the following exercises of governmental power. Which are best left to the
states? Which seem to be more appropriate exercise of federal power? Explain
a)
Speed limits on
interstate highways
b)
The decision to
not recognize gay marriage
c)
Hunting
regulations for duck and geese (season, limits etc)
d)
The decision
whether to allow importation of drugs from
e)
The decision on
whether to allow medical marijuana
f)
The decision on
whether a particular drug can be sold at all (e.g. Birth Control Pills, Viagra,
Acne Medication?)
g)
The decision on
whether to allow abortions
h)
Limits on
emissions from power plants
i)
Guarantees of
access for the disabled from public buildings
j)
The setting of
the standards that students must achieve to gain a high school diploma
Optional: For those interested in view of how Judicial
Interpretation of the Commerce Power affects (e.g. threatens) a wide range of
Federal Laws go to this article by Lauren K. Sanders, “The Judicial Threat to
Congressional Power” July 19, 2005 (posted by the National Senior Citizens Law
Center) http://www.nsclc.org/news/05/07/kelo_congressproc.pdf
Tues Feb 19: Spending Power – Chap 8 & Exam Review
Read Chap 8, p 263-268
Other TBA
Thurs Feb 21 Exam 1 – In Class
Part II. Individual Rights and Liberties
Tues Feb 26 Religion
Clauses –Free Exercise, Establishment
Thurs Feb 28 Religion Clauses Cont
Tent: See Divorce Religion &.. http://writ.news.findlaw.com/colb/20071128.html
Tues March 4 Speech – Chap 13
Can
Nothing be done about the Pedophile Blogger? http://writ.news.findlaw.com/colb/20070806.html
Does
the First Amendment Protect Highly Offensive Speech at a Funeral Directed at
the Decesed? http://writ.news.findlaw.com/dorf/20071105.html
Thurs March 6 Class cancelled so you can make time
to see – The Memorandum at McCardle Theatre, 7:30 PM on Feb 29, March
1& 3-5. A famous Czech play by Vaclav
Havel
March 8-17 Spring
Break
Tues March 18 Press
Chap 14
Thurs March 20 Privacy
Chap 15
Tent:
Should people be free to be enslaved? http://writ.news.findlaw.com/colb/20070919.html
Tent:
When does Pregnancy Begin: http://writ.news.findlaw.com/colb/20071015.html
Mon March 24 Lecture
by Mark Seddon, 7:30
Tues March 25 TBA
(15 or 16)
Thurs March 27
Discrimination Chap. 18
Dorf,
“The Supreme Court Split over Public School Integration – Who really Betrayed
Brown’s Legacy” Findlaw, July 2, 2007. http://writ.news.findlaw.com/dorf/20070702.html
Tues April 1 The
Accused—Attorneys, Trial and Punishments Chap 17
Thurs April
3 Exam 2 – In class (Date is
Still Tentative)
Tues April 8 Exam 2 – Alternate Date
Thurs April 10 Debates/
Presentations (topics TBA)
Tues April 15 Debates/Presentations
(topics TBA)
Thurs April 17 Debates/Presentations
(topics TBA)
Tues April 22 Debates/Presentations
(topics TBA)
Thurs April 24 Debates/Presentations /Wrap Up
FYI:
Optional readings on the Domestic Spying Controversy:
If you are really interested..
-
Congressional
Research Service Report “Presidential Authority to conduct Warrantless
Electronic Surveillance to Gather Foreign Intelligence Information” report
dated Jan 5, 2006 http://www.fas.org/sgp/crs/intel/m010506.pdf (44 pages)
DOJ
White Paper “Legal Authorities Supporting the Activities of the NSA described
by the President” Dated Jan 19, 2006 (42 pages)
http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf
–
In general Find
Law has archived what seems to be the complete list of all documents related to
this issue (including the White Paper and the CRS reports above) at http://news.findlaw.com/legalnews/documents/archive_n.html#nsa
-
Elaine Cassel: “The Congressional Research Service and Constitutional Law Scholars
Weigh in on President Bush's Authorization of Warrantless Surveillance:
Why This Controversy Bridges the Partisan Divide, At Least
Among Experts,” Findlaw’s Writ, Jan 12, 2006. View at: http://writ.news.findlaw.com/cassel/20060112.html
-
U.S. Dept of
Justice Office of Legislative Affairs, Letter to Chairmen of Select Committees
on Intelligence dated Dec 22, 2005, from asst Attorney General William E.
Moschella (letter containing support for NSA activities authorized by the
President). http://www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf
-
Response Letter
to Members of Congress dated Jan 9,
2006, From former official and legal experts - Richard Epstein, William Sessions et al, re
Presidential Authority to conduct Warrantless Electronic Surveillance to Gather
Foreign Intelligence Information (challenging authority for Presidents NSA
activities) http://www.cdt.org/security/20060109legalexpertsanalysis.pdf
(skim this)or here from NY Review of
books: http://www.nybooks.com/articles/18650
-
Prepared
Statement by Alberto Gonzales to the US Judiciary Committee, Feb 6, 2006 http://news.findlaw.com/hdocs/docs/nsa/gonz20606stmnt.html
[1] [1] Note on Hamdan – although the majority outlawed military commissions for the moment, the justices did not shut the door completely – they suggested that Congress could give the President authority for this. And in fact within months of the Courts decision, Congress passed the Military Commission Act (MCA) which authorizes the use of military commissions for suspected terrorists. The next question before the court will be the constitutionality of the MCA (cases are pending – and students will argue them at the close of the term). The MCA limits judicial review including Habeas corpus review for suspected terrorists seeing to challenge their detention. Some argue that this violates Article 1 section 9 of the constitution (see Milligan).