POLITICAL SCIENCE 410

U S CONSTITUTIONAL LAW

 

INSTRUCTOR

Bill Daniel

OFFICE

130 FOUNDERS HALL

HOURS

w, 9:30 - 12:00; or by appt.

PHONE

707 826-3914

E-MAIL

wrd1@humboldt.edu or drd4462@att.net

WEB

www.users.humboldt.edu/danielwr

 

 

TEXTS

 The Honorable Stephen Breyer; Making Democracy Work

 

Barry Friedman; The Will of the People (Friedman)

 

 

 

Virtually every democracy (and many authoritarian regimes) have produced written documents (constitutions) in order to codify the basic principles by which their society is to be governed.  The United States has the distinction of having the oldest living constitution.  Constitutions, however, must be more than words on paper.  It takes the actions of human beings through the interpretative process to give these words real meaning.  Constitutional law embodies these interpretative decisions.  It is comprised of the document itself along with a set of cumulative decisions that add meaning to the original document and its amendments.  Thus constitutional law is a complex set of interwoven, and sometimes contradictory, rules, principles, and understandings.  While there exist in reality several sources of constitutional interpretation; in this class we shall be concerned with the decisions and non decisions of the U S Supreme Court.

 

Though this is a course entitled “Constitutional Law”; it is not a course IN the law.  That is left up to the law schools that primarily use the case method to prepare students for legal careers.  Rather, this will be a course in how the Court makes, and should make, constitutional decisions, and how these decisions affect other political institutions and society.  A constant theme in this course is that federal judges are appointed officials who serve life tenures.  From that perspective the federal judiciary is the least democratic of our political institutions.  Thus there is considerable debate regarding what role the judiciary should play in a democratic society.  Should the Court play an active role in protecting majorities and minorities from the excesses of other branches of government, or should it defer to the policies of the other branches of government, except in extreme circumstances?  Should the Court be a reflection of public opinion, and if so, does it?  What is the effect of Supreme Court decisions on public opinion?  Should the Court restrict its interpretation to the original meaning of the Constitution and its Amendments, or should the Court treat the Constitution as a “living document” in order to accommodate societal change?  These are some of the questions we shall consider, though with the understanding that answers are shrouded in ambiguity.  Though there are many “questions” and many opinions regarding answers, one thing should be quite clear: courts do NOT operate in a political or social vacuum.  This truism is applicable even to the Court of Last Resort, the U S Supreme Court.  We shall analyze the development and substance of constitutional law from this perspective.  Friedman takes a historical perspective, assessing decisions as a mixture of judicial philosophy, the influence of other branches of government and partisan politics, and the impact of public opinion and the media.  Mr Justice Breyer provides us with a well thought out, but by no means universally accepted, approach by which a group of nine unelected persons can mix activism with restraint, stability with flexibility, and purpose and consequence to make democracy work in our nodern society.  Certainly we shall not ignore “cases” decided by the Court, but we shall analyze them in light of the above considerations. Once we cover the basics and provide some possible answers to the above questions, you will have the oppoetunity,th put these considerations into action by serving either as a litigant or a judge in a number of hypothetical cases, based on real possibilities.

 

This is an upper division senior level course.  As such you will be expected to do some sophisticated analysis, listening, critical thinking, writing and presenting.  This will be more of a case analysis course than lecture discussion.  As such you will be expected to come to class each day prepared to discuss the material assigned.  Though individuals will be expected to take charge of the discussion of particular cases, all will be expected to be prepared to contribute to the discussion.

 

Your grade will be determined on the basis of your performance on the following Requirements:

 

Case Study (10 per cent). Since this course often uses the case study method rather than lecture, you are expected to attend class regularly and be prepared to discuss the cases assigned each week. You will be asked to respond to questions on the full meaning of each case. How does the case affect American public policy? How is the decision supported by the reasoning of its opinions? How does the rule of law and its reasoning relate to your own political values? In order to prepare for class you should read and take notes on the cases. You will serve as the lead discussant for one important case. Though all are expected to have read the opinion, you will be the one to explain the decision and answer questions. It will be extremely useful for your presentation and participation should your notes take the form of a case brief.  

Essay  (25 percent). No later than Thursday, October 25, you will submit an evaluative essay on the book by Mr Justice Breyer.  In ten pages using proper documentation, you will answer the following questions: What is the proper role for the judiciary, especially the U S Supreme Court as a decision making body in a political democracy?  What factors should the Court take into consideration in making constitutional interpretations?  Why does the author believe the way he does?   Would the Court act any differently today should his preferences be adopted?  Does the author’s opinion comport with your opinion re the proper role of the Supreme Court?   Why, or why not?

 THE HYPOTHETICALS (30 percent): You will participate either as a lawyer for the appellee or appellant, or as a member of a 3 person judicial panel re one of the hypothetical cases designed to deal with questions which may come before the Court in the not too distant future. Lawyers will produce a document of approximately 15 pages in the form of a LEGAL BRIEF. (CLICK HERE TO FIND AN EXAMPLE) The judges will read the briefs and discuss them. We will hold an oral argument in class, lasting about an hour, in which lawyers present their case and the judges ask questions. (We shall listen to at least one oral argument in class so that folks can get an idea of how to perform.) The panels will then render a decision in the form of a 15 page (approxomate) opinion. The decision may be unanimous, or judges may concur or dissent. The opinions will be read on either the last day of class or during the time scheduled for a final exam, depending on where we are in the course at that time.

Final Examination (25 percent). In lieu of a final exam, you will write an essay of approximately 10 pages in which you answer the following questions. Why does Professor Friedman believe the U S Supreme Court has successfully solved "Madison's dilemma?" Do you agree with him? Why, or why not? Do Friedman and Breyer agree regarding the role of the Court in shaping constitutional law? Explain! This essay is due December 15 at 8:00 A M

Class Participation (10 percent) Based on attendance and preparation to participate in the class discussions. A series of short quizzes may facilitate your preparation.

If you have a documented disability and would like to discuss academic accommodations, please contact me as soon as possible. Our campus Student Disability Resource Center (SDRC) can assist you with the accommodation process and can be reached at (707) 826-4678, (707) 826-5392 (TDD). The SCRC is located in House 71 (Little Apartments) off Library Circle.

Reading Assignments

THE ALABAMA VOTER LITERACY TEST

The following list of supplemental resources are provided by Professor Emeritus JeDon Emenhiser.

Auxiliary Materials

Segal, Jeffrey A., et al. 2007. Supreme Court Compendium. Washington, D. C.: CQ Press. Ref. KF8742     .S914.

 


Biographies of U.S. Supreme Court Justices may be found on the web or in the Library. Profiles of Current Justices.

Freshair. 2007. "Interview with Jeffrey Toobin," author of Nine: Inside the Secret World of the Supreme Court.

The Papers of Justice Tom C. Clark (1949-1967)

Constitutions

The definitive interpretation of the U.S. Constitution through the 1999 session of the Court is on the Internet or in the form of a U.S. Senate document, 103-6, with pocket supplement, 106-27 (in the HSU LIbrary, Third Floor).

Statutes

Essays

Law Journals

Review of Recent U.S. Supreme Court Decisons

Internet Game