Political Science 353 (17337)
Constitutional Law: The Federal System, Separation of Powers and Governmental Institutions
Catalog Description: 3 hours. Selected constitutional provisions and principles as they developed through Supreme Court interpretation. Major attention given to powers and practices of, and interactions among governmental institutions. Prerequisite(s): POLS 101 or consent of the instructor.
I. Introductory Statement
This is a course in American politics. The major purpose is to examine the role and functions of courts, primarily the U.S. Supreme Court, in the American political system. The key objective is to conceptualize and discuss courts and law as part of, not apart from, the political process.
The central focus of the course is on the Supreme Court and its role in dealing with major problems and issues of constitutional law. In the main, these problems and issues will be examined in two major areas; i.e., the nature and operation of separation of powers; and the nature and operation of the federal system. Only limited attention will be given to civil rights and civil liberties since major topics in these areas are reserved for study in other con law courses I teach; e.g., Political Science 354, 356 and 358.
In attempting to meet our major objectives, attention will be given to: l) the nature, capacity, and limitations of courts and the judicial process in dealing with policy issues; 2) the substance of judicial policies and factors that might account for policy continuity and change over time; 3) the political-social impact of judicial policies; and, 4) the role of the judicial function in the resolution and management of policy conflict.
Particular attention is also given to the relation and interaction of the judiciary with other governing institutions, i.e., the Congress and President, in the formulation of public policy and in the political system generally.
The class will be conducted in an informal seminar format utilizing the Socratic method. This format lends itself to continuous active engagement and dialogue between the professor and students and among students themselves. Accordingly, students are encouraged and expected to attend and participate in class. Meaningful participation, however, requires that students must come to class prepared. Should this occur, the class will be an interesting, challenging, and an exciting learning experience. A word of caution: it is important that students prepare for each class since material is cumulative and the workload increases dramatically as the session proceeds. Attendance in class and participation in discussion seminars is both mandatory and essential. I will randomly take attendance. Your attendance grade will be calculated based on the percentage of days you are present when attendance is taken.
To repeat: it is important that students prepare for each class since material is cumulative and the workload of the course increases dramatically as the term proceeds. Moreover, the nature of the materials and expectations of the course make it very difficult for students to “catch up and understand” overnight unless a consistent pattern of study has been taking place all along.
By the end of the session, students should be able to:
- Explain many of the complex relationships between law and public policy.
- Utilize landmark decisions of the United States Supreme Court as vehicles to survey and explain developments relating to federalism, the separation of powers, and the constitutional powers and constraints in and between the executive, legislative, and judicial branches of government and the individual states.
- Relate the legal process and judicial policymaking to the larger American political process and the constitutional powers of the state and federal governments.
My Teaching Philosophy
Learning to teach at the highest levels of the academy is a never ending process. It has been argued that the vast majority of professors lack basic communication skills, we are not self-actualized, and we often use the classroom to enact rituals of control that are rooted in domination and the unjust exercise of power (bell hooks. Teaching to Transgress, p. 5). I have spent much of my career trying to avoid this trap. I want my classroom to be an exciting place where students feel safe to express themselves, for it is only then that we can achieve higher learning. It is my goal to acknowledge everyone’s presence and I value everyone’s presence.
I am also acutely aware of the various and unique sensitivities that play out in classes that explore issues of race and gender. We are a diverse group (race, religion, ethnicity, gender, sexual orientation, identity, etc.) and each of us has something to contribute to our community of learning. I want you to be engaged and active participants. To that end, the wiki also serves as a voice for student expression and the free exchange of ideas—a safe environment sans the fear of expressing ourselves in class.
I find that many students would prefer “more lectures” and “less discussion” in my classes. I try to transgress traditional boundaries and to avoid “assembly-line” approaches to learning. I want to engage students and I take some non-traditional risks when I teach. As a research trained academic, I am always looking for answers. We learn from each other. For example, part of my teaching style is to bring narratives of my limited personal experiences into the classroom—not only to personalize the material but to also show how our individual experiences (both yours and mine) can illuminate and enhance our understanding and deconstruction of academic material. Admittedly, I do most of the talking, but I want us to hear each other, to listen to each other, and to recognize that the work of learning and processing this material is different for each of us.
Most research concludes there are two approaches to teaching constitutional law: (1) lectures and (2) the Socratic Method. Traditional lectures are a popular and primary method of classroom instruction used in college today. I find that the lecture method, if done well, is an efficient system for delivering information to students. However, the lecture method of instruction has been widely criticized, “primarily on the grounds that it places students in a passive learning environment. It may also be less effective in developing analytic skills. The lecture method is weakest in helping students to develop their speaking abilities or critical thinking skills.” But, lecturing is also the easiest way for professors to teach, it requires the least amount of knowledge, effort, risk; requires limited skill; and is extremely safe. It works well teaching an introductory class like PolS 101.
An alternative to the lecture method is the Socratic Method. This is a form of instruction that is popular—and probably predominant—in law school classes, and this method is also used in undergraduate classes, especially law courses. “Professors use the Socratic Method in a wide variety of ways, varying from posing a series of friendly questions to an intense grilling of students with difficult questions and abstract queries.” Debate exists in the political science literature over the benefits and disadvantages of the Socratic Method. “The Socratic Method forces students to think on their feet and to articulate their ideas orally. However, the Socratic Method may not be as efficient in transmitting basic knowledge as does the lecture method.” In my classes and seminars, I utilize a modified Socratic Method in a low-threat/discussion manner that does not penalize or humble students for poor responses.
However, even my low-threat Socratic Method can be frustrating if students have not read the assigned material, are not prepared for class, or do not attend class. It is frustrating (1) for me; (2) for the students who are prepared for class and want to engage; and, (3) for students who are not prepared but who plan on taking detailed class notes to help them prepare for exams. To avoid this frustration, students must come to class prepared! Welcome to my class and I look forward to an exciting learning experience.
All students must utilize the UIC Blackboard Learning system AND UIC GoogleApps. http://accc.uic.edu/service/googleapps I will contact you via your UIC email account.
Students should be familiar with UIC’s policies regarding academic integrity. These guidelines can be found at the following URL: www.uic.edu/depts/sja/integrit.htm
The tape recording of any part of my class (or the use of any other electronic recording device) is strictly prohibited.
Students with disabilities who require accommodations for access and participation in this course must be registered with the Office of Disability Services (ODS). Please contact ODS at 312/413-2103 (voice) or 312/413-0123 (TTY). If you have a documented disability and wish to discuss academic accommodations, please contact me immediately (email@example.com, 1102a BSB).
(1) There is one required text for PolS 353: David M. O’Brien, Constitutional Law and Politics: Struggles for Power and Governmental Accountability, 8th, 9th, 10th, 11th, or 12th edition, Vol. I. Page numbers on this syllabus correspond to the 9th edition.
(2) Students should also familiarize themselves with Lexis/Nexis via the UIC Library (online). You can also access Lexis/Nexis from home/dorm using your UIC net-id),
Optional Texts: Lawrence Baum, The Supreme Court
Assignments and Grading Policies
Students are required to attend class, take written examinations at the mid-term and final grading periods and make daily wiki posts. Additionally, throughout the semester there may be several short out-of-class research assignments, required case briefs (turned in), and frequent review quizzes (both in-class and take-home). These will be discussed later.
Computation of Course Grade 4 WEEK Summer 2022
|WordPress (case briefs and comments)||10%|
Readings under the various topic areas are only suggestive of the vast and growing literature and case law available. All assigned cases must be read prior to the class session for which they are assigned. Be prepared to review and discuss all assigned cases and readings in class.
Tentative Semester Schedule
· Date headings are merely suggestive of when discussion might begin for each topic area and are subject to change (keep on track).
· Not all “required” material listed on the syllabus will be discussed in class, however said materials are “fair game” for the midterm and final examinations.
· Additional material will be added to the syllabus during the semester (like the Constitution, the syllabus can be amended).
Day 1, Monday May 15
Read the syllabus for PolS 354. Be sure to review all the course requirements.
Review the course requirements again, and then again.
Constitutional Law with Lyles
Extra Credit Guidelines
What is a Case Syllabus and/or Headnotes?
Lyles, Barker, et. al. Civil Liberties and the Constitution: Cases and Commentaries (9th edition)
CHAPTER 1. Civil Liberties and the Constitution
A Framework for Analysis, pp. 1-2
Law and Courts in Political-Social Context, pp. 3-5
Congress, the President, and Administrative Officials, pp. 5-8
Interest Groups and the Dynamics of Civil Liberties, pp. 8-9
More on the Court: Inside the Marble Palace, pp. 9-13
The Rules of the Game and American Political Values, pp. 13-16
Lyles, Barker, et. al. Civil Liberties and the Constitution: Cases and Commentaries (9th edition)
CHAPTER 2. CIVIL LIBERTIES IN THE CONTEXT OF FEDERALISM, pp. 17-19
The Supreme Court, the Bill of Rights, and the Fourteenth Amendment, pp. 19-23
State Constitutions, pp. 23-26
State Judicial Selection, pp. 26-27
Conclusion, p. 27
Lecture 1. Introduction to Courts and Law.
Book Review Guidelines
Day 2, Tuesday May 16
[optional] More on Special Three-Judge Panels
Lecture 2: The Federal Courts: Nature and Structure of the Legal and Political System.(lyles)
Lecture 3: Courts as Policy-making Institutions. (lyles)
Martin Shapiro v. Robert Dahl
Supreme Court Criticism (2023)
[optional] Dahl, Robert. “Decision-making in a Democracy: The Supreme Court as a National Policy-Maker,” Journal of Public Law, vol. 6. (1957).
[optional] Casper, Jonathon D. “The Supreme Court and National Policy Making,” American Political Science Review 70 (1970): pp. 50-63.
[optional] Barker, Lucius. “Third Parties in Litigation: A Systemic View of the Judicial Function,” Journal of Politics 29 (1967): pp. 41-69.
[optional] Funston, Richard. “The Supreme Court and Critical Elections,” American Political Science Review 69 (1975): pp. 795-811.
[optional] Baum, ch. 4-6
[optional] Lyles, The Gatekeepers: Federal District Courts in the Political Process, ch. 1, pp. 1-9.
EXTRA CREDIT: Kevin Lyles, The Gatekeepers: Federal District Court in the Political Process, chapter 3, Judicial Selection
Lyles, The Bork Confirmation Battle: A Case Study on Judicial Selection, Lyles, (1994) [optional]
[optional] Amicus Curiae (skim)
Footnote 4 Stone
Skim the first two chapters of the O’Brien book. You are not required to read the cases (the actual case opinions), just SKIM the text between the cases. I will lecture on this material during the first weeks of the semester. Topics will include:
Jurisdiction and Justiciable Controversies: Types of Writs
Ex Parte McCardle (1869) [optional]
Adverseness and Advisory Opinions, Standing to Sue
Frothingham v. Mellon (1923) [optional]
Flast v. Cohen (1968) [optional]
Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. (1982) [optional]
Lujan v. Defenders of Wildlife (1992) [optional]
Ripeness and Mootness
Roe v. Wade for 353, etc. [optional]
Luther v. Borden (1849) [optional]
Colegrove v. Green (1946) [optional]
Baker v. Carr (1962) [optional]
Goldwater v. Carter (1979) [optional]
Stare Decisis, Certiorari. and the Rule of Four, Oral argument, Summarily Decided Cases
Florida v. Meyers (1984) [optional]
The Judiciary: Judicial Review and Constitutional Politics
Hylton v United States 1796 [optional]
Calder v Bull 1798 [optional]
Skim: “A Brief Overview of the Supreme Court”
[optional] The Constitution of the United States of America [pp. 807-817]
[optional] *Alexander Hamilton, et. al. The Federalist Papers, No. 78-81
[optional] “Understanding the Federal Courts
How and Why to Brief a Case
Marbury v. Madison [everyone should write their first brief AND post something on this page before the next class]
Also, you are required to watch my Summer 2020 Blackboard lecture on Marbury v. Madison, found on Blackboard on the left side. Watch the recording before class on Thursday if you are a new student.
Extra Credit. The Story of Marbury v Madison, by Michael W. McConnell
Watch The Supreme Court Visitor’s Film (C-Span, narrated by A.E. Dick Howard) click here: Supreme Court Visitor’s Film [everyone must post a comment TODAY]
Martin v Hunter’s Lessee (1816) [optional]
Eakin v Rob 1825 p.55 [optional]
Muskrat v. United States (1911) [optional]
Incorporation Doctrine (Incorporation, Non-Incorporation, and Selective Incorporation)
Kevin Lyles, et. al. Civil Liberties and the Constitution: Cases and Commentaries (9th edition), Chapter 2, esp. 19-23 [REQUIRED, pp. 19-23]
Barron v. Baltimore 1833
The Selective Nationalization of the Bill of Rights and Other Fundamental Rights, in David M. O’Brien, Constitutional Law and Politics, vol. 2, pp. 306-315. [optional] AND,
Cases Incorporating Provisions of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment [optional]
Hurtado v. California (1884) [optional] also PolS 354
Twining v. New Jersey (1908) [optional]
Palko v. Connecticut (1937), [optional] also PolS 354
Slaughterhouse Cases 1873 [optional] also PolS 354, 356, 358
Day 3, Thursday May 18
Presidential Power: The rule of law and Foreign Affairs
As Commander in Chief and in Foreign Affairs, pp, 244-
United States v. Curtis-Wright Corporation 1936
Haig v. Agee 1980 [optional]
Dames & Moore v. Regan (1981)
Dames & Moore v. Regan, by Monroe Leigh. The American Journal of International Law, Vol. 75, No. 4 (Oct., 1981), pp. 954-957 [optional]
Sale v. Hatian Centers Council, Inc. 1993
The Treaty-Making Power and Executive Independence, pp. 262-
[The National Preemption of State Laws]
Missouri v. Holland 1920
United States v Belmont 1937
United States v. Pink (1942)
Goldwater v. Carter (1979)
United States v. Alvarez-Machain (1992)
Medellin v. Texas 2008 [optional]
Lyles, The Gatekeepers, chapter 3, pp. 37-72. [optional]
WATCH: Watch The Supreme Court Visitor’s Film (C-Span, narrated by A.E. Dick Howard) click here: Supreme Court Visitor’s Film [everyone must post a comment TODAY]
DAY 4, FRIDAY MAY 19
War-Making and Emergency Powers, pp. 284-
The Prize Cases (1863)
Ex parte Milligan (1866)
Korematsu v. United States (1947) [and PolS 354]
[optional] Rasul v. Bush (2004) (also listed under “rights of persons accused of crimes,” PolS 354)
[optional] Hamdi v. Rumsfeld (2004) (also listed under “rights of persons accused of crimes,” PolS 354)
[optional] Boumediene v. Bush (2008) (also listed under “rights of persons accused of crime”s, PolS 354)
War Powers Resolution, p. 343 9th edition
The President as Chief Executive in Domestic Affairs, 359-
National Security and Inherent and Emergency Powers, 360-
Youngstown Sheet and Tube Co. v. Sawyer (1952)
New York Times Co. v. United States (1971)
Appointment and Removal Powers, 391-
Myers v. United States (1926)
DAY 5, MONDAY MAY 22
Humphrey’s Executor v. United States (1935)
Wiener v. United States (1958)
[optional] Bowsher v. Synar (1986)
[optional] Morrison v. Olson (1988)
Legislative Powers in the Administrative State, 435-
Schechter Poultry Corporation v. United States (1935)
Industrial Union Department, AFL-CIO v. American Petroleum Institute (1980)
Immigration and Naturalization Service v. Chadha (1983)
Clinton v City of New York 1998 [optional]
DAY 6, TUESDAY MAY 23
Accountability and Immunities, 465-500
United States v Nixon (1974)
Clinton v. Jones (1997)
Articles of Impeachment against President William Jefferson Clinton, Recommended by the House Judiciary Committee [optional]
DAY 7, THURSDAY MAY 25
There is NO CLASS today. Use this day to study and catch up on your WordPress postings. You might also want to have a study session if someone organizes it, I will attend. The midterm exam is tomorrow during regular class time.
DAY 8, FRIDAY MAY 26…TODAY IS THE MIDTERM EXAM
DAY 9, MONDAY MAY 30, NO CLASS, MEMORIAL DAY HOLIDAY
DAY 10, TUESDAY MAY 30
The Landmark Case: McCulloch v. Maryland (1819), pp. 551-561 also, PolS 354, 356, 358
Membership and Immunities, 501-
Powell v. McCormack (1969)
U.S. Term Limits Inc. v. Thornton (1995)
McGrain v. Daugherty (1927) (preview)
Gravel v. United States (1972)
Eastland v. United States Servicemen’s Fund (1975)
Hutchinson v. Proxmire (1979)
Investigatory, Contempt, and Impeachment Powers, pp. 524-
McGrain v. Daugherty (1927) (review)
Watkins v. United States (1957)
Barenblatt v. United States (1959) p. 527
Gibson v. Florida Legislative Investigation Committee (1963) [optional]
Walter L. Nixon v. United States (1993)
DAY 11, THURSDAY JUNE 1
Congress: Legislative Taxing and Spending Powers 540-
McCulloch v. Maryland (1819), pp. 551-561 (review)
Gibbons v. Ogden (1824)
From Legal Formalism to the New Deal Crisis, 568–
From the New Deal Crisis to the Administrative State, 583-
United States v. E.C. Knight Company (1895)
Hammer v. Dagenhart (1918)
National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937)
United States v. Darby Lumber Company (1941)
Wickard v. Filburn (1941)
DAY 12, FRIDAY JUNE 2
Title II of the CRA 1964
Heart of Atlanta Motel, Inc. v. United States (1964)
Katzenbach v. McClung 1964
Title VII of the Civil Rights Act of 1964
“How Sex Got Into Title VII” [optional]
Phillips v. Martin Marietta Corp 1971 [optional]
Griggs v. Duke Power Company 1971 [optional]
United States v. Lopez (1995)
Reno v. Condon (2000) [optional] City of Boerne v. Flores (1997) [optional]
United States v. Morrison (2000)
Souter’s dissent in Morrison [optional 353]
Breyer’s dissent in Morrison [optional 353]
Gonzales v. Raich 2005 [optional]
Gonzales v. Oregon 2006 [optional]
DAY 13, MONDAY JUNE 5
Taxing and Spending, 661-
Pollack v. Farmer’s Loan and Trust Co. (1895) [optional]
McCray v. United States (1904)
United States v. Doremus (1919)
Bailey v. Drexel Furniture Co. (1922)
J. W. Hampton, Jr. and Co. v. United States (1928)
United States v. Butler (1936)
Steward Machine Co. v. Davis (1937)
United States v. Kahriger (1953)
South Dakota v. Dole (1987)
National Federation of Independent Businesses v. Sebelius (2012) pp. 660-661, 672-688.
DAY 14, TUESDAY JUNE 6
State’s Power of Commerce and Regulation, 700-
Cooley v. Board of Wardens of the Port of Philadelphia (1852)
Southern Pacific Co. v. Arizona (1945)
Bibb v. Navajo Freight Lines, Inc. (1959)
Maine v. Taylor (1986)
Pennsylvania v. Nelson (1956)
Collector v. Day (1871) [optional]
Coyle v. Oklahoma (1911) [optional]
Edwards v. California (1941) [optional]
The Tenth and Eleventh Amendments, 743-
National League of Cities v. Usery (1976) [optional]
Garcia v. San Antonio Metropolitan Transit Authority (1985)
Economic Rights and American Capitalism, p. 1019-
The Contract Clause and Vested Interests in Property, 1021-
Fletcher v. Peck (1810)
Trustees of Dartmouth College v. Woodward (1819)
Charles River Bridge Co. v. Warren Bridge Co. (1837)
Home Building and Loan Association v. Blaisdell (1934)
DAY 15, THURSDAY JUNE 8
The Takings Clause and Just Compensation, p. 1078-
Barron v Baltimore (1883)
Definitions: The Takings Clause
Hawaii Housing Authority v. Midkiff (1984)
Nollan v. California Coastal Commission (1987)
Lucas v. South Carolina Coastal Council (1992)
Kelo v. City of New London (2005)
Star Wars 2016
The Obama Library (2020)
[optional 353] The Theft of the Commons: Across centuries, land that was collectively worked by the landless was claimed by the landed, and the age of private property was born.