Constitutional Law - Fall, 2011 - Section 3
Professor Leora Harpaz
Class Meetings: Monday 7 - 8:50 p.m., Thursday 6:00 - 7:50 p.m.
Office - Room 317; Telephone - 782-1437
E-mail - lharpaz@lharpaz.com
Website: www.wneclaw.com
Office Hours - Monday 5 - 6 p.m. and 9 - 9:30 p.m., Thursday 4:30 - 5:30 p.m. and by appointment

SYLLABUS

Required Reading: Sullivan & Gunther, Constitutional Law (17th edition, 2010, Foundation Press) PLUS additional online materials.

Course Description

            A study of the allocation of governmental authority and the limitations on that authority as defined by the United States Constitution. The course will deal with the problems of defining the scope of federal power, the relationship between the federal government and the states, the scope of state authority, and the rights of individuals with an emphasis on those rights guaranteed by the Due Process and Equal Protection Clauses of the Constitution.

Grading: The course grade will be based on a three-hour closed book examination.

Attendance Policy: ABA Standard 304(d) requires “regular and punctual” class attendance. To implement this policy, students will be required to initial an attendance sheet for each class. Failure to initial the attendance sheet will be counted as an absence. Students must initial the attendance sheet for themseleves. Asking another student to write your initials on the sheet when you are absent in order to falsely indicate presence in class is a violation of the Honor Code. Students who are absent from more than 20% of regularly scheduled classes (more than 6 classes) will be administratively withdrawn from the course. Students who miss 5 classes will be sent a warning letter by email alerting them to the fact that they are in danger of administrative withdrawal.

ASSIGNMENTS

NOTE:  THIS IS A PARTIAL LIST OF ASSIGNMENTS.  IT WILL BE UPDATED PERIODICALLY TO ADD MORE ASSIGNMENTS TO THE LIST AS THE SEMESTER PROGRESSES.

ADDITIONAL NOTE: For each assignment, please read the provisions of the United States Constitution referred to in the assigned cases.

QUESTIONS BEFORE CLASS: In connection with each reading assignment, there are questions which you should attempt to answer prior to class. These questions are listed by assignment number in a single document: Questions Before Class

ASSIGNMENTS: Each assignment represents the reading for a single class. You should be prepared to discuss all of the cases in each assignment, however, the cases that are bolded will be the central focus of class discussion. If we do not complete an assignment in a single class, you should nevertheless read the next assignment in its entirety. However, once we fall one full class behind in the reading, no new reading will be assigned for the succeeding class.
 

1. Introduction to Judicial Review and the Constitution

(a) Read casebook pages 1-15 (Marbury v. Madison and material on the background and meaning of Marbury).
If you have not yet purchased the casebook, a similar, but not identical, version of Marbury v. Madison is available online.
(b) Take the Constitution Quiz on ConstitutionFacts.com and test your Constitution I.Q.

2. Introduction to the Limits on Government Power and the Methodology of Constitutional Analysis

Steps In Constitutional Analysis
Johnson v. California, 125 S. Ct. 1141 (2005)

3. Introduction to Federalism

Pages 60-76 (McCulloch v. Maryland and material on the background and meaning of the McCulloch decision)

4. The Commerce Power Before and During the New Deal

Pages 82-96 (Gibbons v. Ogden, Knight, Houston E. & W. Ry. Co.[The Shreveport Rate Case], Swift & Co., Champion v. Ames [The Lottery Case], Hipolite Egg, Hoke, Hammer v. Dagenhart [The Child Labor Case], Alton Railroad, Schechter Poultry, Carter Coal)

5. The Commerce Power After the New Deal

Pages 96-106 (Jones & Laughlin, Darby, Wickard v. Filburn, Heart of Atlanta Motel, Katzenbach v. McClung, Perez)

6. Revival of Internal Limits on the Commerce Power Since 1995

Pages 106-126 (United States v. Lopez, United States v. Morrison, Gonzales v. Raich)

7. External Limits on the Commerce Power: Federalism and the Tenth Amendment

Pages 127-143 (Coyle v. Oklahoma, United States v. California, New York v. United States, National League of Cities, Garcia, South Carolina v. Baker, New York v. United States, Printz v. United States, Reno v. Condon)

8. Other National Powers: The Taxing and Spending Powers

Pages 151-167 (Child Labor Tax Case, United States v. Kahriger, United States v. Butler, Steward Machine Co. v. Davis, Helvering v. Davis, South Dakota v. Dole)

9. Recent Controversies over the Scope of  Congressional Authority

(1) United States v. Comstock
(2) Thomas More Law Center v. Obama (6th Circuit decision upholding the individual mandate provision of the Affordable Care Act)
(3) Florida v. Department of Health and Human Services (11th Circuit decision striking down the individual mandate provision of the Affordable Care Act)

10. The Dormant Commerce Clause

Pages 175-195 (Gibbons v. Ogden, Willson v. Black-Bird Creek Marsh Co., Mayor of the City of New York v. Miln, The License Cases, Cooley v. Board of Wardens, Wabash, St. Louis & P. Ry. Co. v. Illinois, Smith v. Alabama, Southern Railway Co. v. King, Seaboard Air Line Co. v. Blackwell, DiSanto v. Pennsylvania, Buck v. Kuykendall, Bradley v. Public Utilities Comm'n, Pike v. Bruce Church, Inc., Philadelphia v. New Jersey, Maine v. Taylor - plus excerpt below, Hughes v. Oklahoma,Oregon Waste Systems, West Lynn Creamery, Camps Newfound/Owatonna, Inc. v. Town of Harrison - plus excerpt below)

In addition to the reading in the casebook, please read the materials below:
Maine v. Taylor (read in addition to note on case on page 192)
Camps Newfound/Owatonna, Inc. v. Town of Harrison (read excerpt in addition to note on case on page 194)

11. The Dormant Commerce Clause

Pages 195-209 (Dean Milk v. Madison, C & A Carbone, Inc. v. Clarkstown, United Haulers Assn. v. Oneida-Herkimer Solid Waste Mgmt. Auth., Department of Revenue of Kentucky v. Davis, South-Central Timber Development, Inc. v. Wunnike)

12. The Dormant Commerce Clause and the Privileges and Immunities Clause

Pages 212-214, 216-223, and 225-232 (Hunt v. Washington State Apple Advertising Comm'n, Bacchus Imports, LTD. v. Dias, Pike v. Bruce Church, Inc., Kassel v. Consolidated Freightways Corp., Barnwell Bros., Southern Pacific, Bibb, United Bldg. and Construction Trades Council v. Camden, Supreme Court of New Hampshire v. Piper)

In addition to the reading in the casebook, please read the excerpt below:
Baldwin v. Montana Fish & Game Commission (defining privileges and immunites under Article IV, Section 2)

13. Preemption of State Authority and Separation of Powers

Pages 232-241 (Pacific Gas & Elec. Co., Rice, Hines, Florida Lime & Avocado Growers, Gade, Wyeth v. Levine, Crosby)
Pages 310-325 (Clinton v. New York, Buckley v. Valeo, Bowsher v. Synar, Meyers v. United States, Humphrey's Executor v. United States, Wiener v. United States, Morrison v. Olson)

14. Individual Rights Before and After the Civil War and Incorporation of the Bill of Rights Through the Due Process Clause

Pages 348-356 and 363-369 (Barron, Slaughter-House Cases, Palko, Adamson, Duncan)
In addition to the reading in the casebook, please read the case below:
McDonald v. City of Chicago

15. Substantive Due Process and Economic Liberties

Pages 375-389 (Calder, Munn, Mugler, Allgeyer, Lochner, Adair, Coppage, New State Ice, Muller, Adkins, Nebbia)
In addition to the reading in the casebook, please read the case below:
Weaver v. Palmer Bros. Co.

16. The Demise of Lochner After the New Deal and Substantive Due Process and Privacy

Pages 389-394 and Pages 427-434 (West Coast Hotel, Carolene Products, Carolene Products Footnote 4, Williamson v. Lee Optical, Ferguson v. Skrupa, Meyer, Pierce, Skinner, Griswold)

17. Substantive Due Process and Contraception and Abortion

Pages 435-457 (top of page) (Eisenstadt, Carey, Roe v. Wade, Notes on Substantive Due Process and Abortion paying careful attention to the material in Note 6 on State Regulation of Abortion from Roe to Casey, Planned Parenthood v. Casey)

18. Substantive Due Process: Abortion (The Meaning of Casey) and Marriage and Family Relationships

Pages 457-470 (Ayotte v. Planned Parenthood, Stenberg v. Carhart, Gonzalez v. Carhart, Loving v. Virginia, Zablocki v. Redhail, Turner v. Safley, Moore v. East Cleveland, Belle Terre v. Baraas, Troxel v. Granville, Michael H. v. Gerald D.)

19. Substantive Due Process: Sexuality

Pages 470-484 (Bowers v. Hardwick, Lawrence v. Texas)

20. Equal Protection: Minimum Rationality Review of Economic Regulation and Strict Scrutiny of Racial Discrimination

Pages 641-647 and 514-521 (Railway Express Agency v. New York, Lee Optical, New Orleans v. Dukes, U.S. Dept. of Agriculture v. Moreno, Beazer, Allegheny Pittsburgh Coal, Nordlinger, Village of Willowbrook v. Olech and McLaughlin v. Florida, Loving v. Virginia, Palmore v. Sidoti, Korematsu v. United States)

21. Racially Discriminatory Purpose and Effect and Affirmative Action and Race Preferences

Pages 521-522, 524-529, and 549-560 (Yick Wo, Washington v. Davis, Arlington Heights,Grutter, Gratz)

22. Equal Protection: Sex Discrimination
Pages 586-605 (Bradwell v. State, Minor v. Hapersett, Goesaert v. Cleary, Reed v. Reed, Frontiero v. Richardson, Craig v. Boren, Mississippi University for Women v. Hogan, J.E.B. v. Alabama, United States v. Virginia)

23. Equal Protection: Sex Discrimination and Other Classifications Arguably Warranting Heightened Scrutiny
Pages 605-610, 616-618, and 624-636 (Geduldig v. Aiello, Michael M. v. Superior Court, Rostker v. Goldberg, Orr v. Orr, Weinberger v. Weisenfeld, Califano v. Goldfarb, Califano v. Webster, Cleburne v. Cleburne Living Center, Inc., Massachusetts Board of Retirement v. Murgia, James v. Valtiera, Romer v. Evans)
Ruiz (instate tuition)