Constitutional Law II
PSC 325 (Spring 2016)

Syracuse University

 

Tom Keck

Teaching Assistant: Richard Barton

tmkeck[at]maxwell.syr.edu

 rcbarton[at]syr.edu 

Office hours: T 3:30-4:30, Th 11:00-12:00 W 4:00-5:00; Th 12:00-1:00
Office location: Eggers 312 (315-443-5862) Eggers 024

Class Time and Location: T, Th 9:30-10:50, HL 214.

Prerequisite: It is customary to complete Constitutional Law I before taking this class. Students who have not done so should speak with Prof. Keck during the first week of class.

Course Content and Objectives

The framers of the U.S. Constitution tried to design a government that would be vigorous enough to serve the people's needs, but not so powerful as to trample on the people's liberties. Likewise, they sought to design a government that would be responsive to the demands of popular majorities, but that would also respect the rights of minorities. They came up with a Constitution that has survived for more than 200 years, so they must have been doing something right. Still, their design included a number of features that have provoked conflict and controversy from 1787 to today. For example, their severely fragmented system of government authority has sometimes prevented the federal government from responding rashly to the demands of the moment, but at other times, it has prevented the government from addressing important national problems. In similar fashion, the complex set of indirect elections and appointments that the framers designed for choosing our nation's lawmakers has sometimes succeeded in "filtering" and improving the public will, but at other times, it has prevented the public's voice from being heard at all. And our life-tenured federal judges have sometimes stood as valiant defenders of individual liberty and minority rights, but at other times, they have served as shields of privilege, power, and the status quo.

Building on our efforts in Constitutional Law I, we will seek to evaluate the performance of this constitutional system by examining its evolution over time. Moving chronologically from the mid-twentieth century (where Con Law I left off) to the present, we will assess three related strategies adopted by the framers to empower democratic government while also limiting it. The framers sought to limit governmental power by (a) dividing it among many hands, (b) subjecting it to the regular check of democratic elections, and (c) authorizing the judicial protection of certain fundamental rights. We will examine these strategies in the context of a wide range of legal and political conflicts--involving the legitimate scope of presidential authority during wartime, the right to bear arms, the resolution of disputed vote counts in a presidential election, race-conscious affirmative action policies, marriage equality for same-sex couples, and much more.

The most important goals of the course are to help you develop an enriched understanding of the principles embedded in this country's fundamental law and a refined ability to determine on your own whether the practice of American politics is faithful to these principles. As such, the course addresses controversial topics that raise difficult questions about our personal experiences and political beliefs, and it is therefore essential that students make every effort to tolerate competing views and to treat each other with concern and respect.

 

Learning Outcomes

By the end of the semester, all students will have widened and deepened their knowledge of the US constitutional system and will have improved their critical reading and writing skills.  

Course Readings

Most of the readings for the course are from the following book, which is available for purchase at the SU Bookstore:

If you took Con Law I with me last Fall, it's the same book we used for that class. If you do not already own it, it is available for purchase at the SU Bookstore and is also available on 2-hour reserve at Bird Library.

In the course schedule below, the book is referred to as "GGW," for Gillman, Graber, and Whittington. Some additional required readings will be available on-line or will be distributed in class. The on-line readings are underlined in the course schedule below and are linked from this syllabus. The following on-line resources may be useful as well:

Course Expectations

Grades will be based on a 3-page memo, a 5-page paper (which will be submitted in two parts), a 10-page paper (which will also be submitted in two parts), a final exam, and attendance and participation in class.

In addition, to pass the class, all students must succesfully recite from memory a passage from a Supreme Court opinion. You can do this in class or during office hours.  

The papers (together, 60% of your grade) 

A substantial portion of your final grade will be determined by your completion of the writing assignments described below. To excel in the class, you will need to produce papers that demonstrate your close reading of, and active engagement with, the required readings that are assigned in the course schedule. The 5-page paper requires no additional or outside reading, and I discourage you from doing any. The 3-page memo and 10-page paper may require some research of your own, but that research should be integrally linked with an analysis of material drawn from the course syllabus. In all papers, I am looking for a clear argument of your own that responds to the assigned question and that is supported by a careful, detailed, and thoughtful discussion of the materials we have read. Since good writing comes from careful revision, I encourage you to discuss your papers with me and/or the teaching assistant before they are due. In addition, please consult my paper expectations guide before completing each assignment.

Hard copies of all papers are due on the date indicated in the schedule below. In addition, on that same day, electronic copies of all papers must be submitted to turnitin.com, available through Blackboard under the Assignments tab. Late papers will be accepted only under unusual circumstances, and only with Professor Keck's explicit approval.

Assignment #1: 3-page memo

Each student must submit a memo analyzing one of the following cases drawn from the Supreme Court's current docket: Whole Woman's Health v. Cole, Southern Nazarene University v. Burwell (or Little Sisters of the Poor v. Burwell, which is focused on the same issue), Franchise Tax Board of California v. Hyatt, Evenwel v. Abbott, Fisher v. University of Texas, or Friedrichs v. California Teachers Association. Further details about each of these cases are available at SCOTUSblog here.

The memo should be drafted as if you were a law clerk for one of the nine current justices, and you should specify which justice you're clerking for. In the memo, which should be approximately three full pages (double-spaced), you should provide the key information necessary for your justice to cast an informed vote in the case. At a minimum, the memo should include a summary of the key relevant precedents, a description of the key arguments advanced by petitioner and respondent, and a recommendation as to which party should win. If there are arguments contained in one or more amicus curiae briefs that seem particullary notable, feel free to cover those as well.

Note that the due date for this assignment varies depending on which case you're writing about; each due date is listed in the course schedule below. If you submit more than one of these memos, we will drop the lowest grade and/or provide some other modest degree of extra credit. The memo is worth 10% of your grade. 

Assignment #2: 5-page paper

In a paper of approximately five pages, typed and double-spaced, answer the following question: What was the Supreme Court doing in the 1960s? The "Warren Court," as it was known, issued a long string of landmark decisions across a wide range of legal questions. Stepping back from the details of the individual cases, is there some coherent way to understand what the justices were up to? Were they finally enforcing a set of fundamental constitutional principles that the Court had long ignored? Or were they creating a new set of human rights principles from scratch, to save a Constitution that was on the verge of becoming obsolete? Were they simply imposing their own liberal preferences on the nation at large? Or were they redesigning the American political system to make it more democratic? Are they best understood as independent judges enforcing legal principles? Or as members of a Democratic Party coalition that controlled all three branches and was seeking to build a "Great Society"? You need not address each of these individual questions, but you should come up with some overall narrative that can explain a significant portion of the Court's decisions. Be sure to provide specific examples in support--preferably, citations to at least six decisions contained in our course readings, with direct quotations from at least three of them.

This assignment will be submitted in two parts--first, a one-page partial draft that articulates a provisional thesis and identifies several cases that seem relevant to the thesis, and second, a five-page final draft. These components are referred to as assignments 2A and 2B in the course schedule below, which indicates the due dates for each component. The one-page version is worth 5% of your final grade; the five-page version is worth 15%.

Assignment #3: 10-page paper

In a paper of approximately 10 pages, typed and double-spaced, identify some significant way in which the Constitution has changed during your lifetime. I mean that last part literally; your paper should focus on some set of constitutional developments that have taken place from the year of your birth--which you should indicate somewhere in the paper--to the present.

Once you've identified the developments you would like to examine, you should make the case for how and why they are significant. What happened? Why should we care? How does it relate to things that came before? Was it a change for the better or for the worse? Did it represent a progressive unfolding of constitutional principles? A conservative abandonment of the promise of the Warren Court years? A renewed fidelity to the original Constitution, after long years of neglect? Or something else altogether?

This assignment is large and challenging, and intentionally so. As such, I encourage you to begin thinking about it as soon as possible, and to raise any concerns you have during class or office hours. As mentioned above, be sure to consult my paper expectations guide. And to reiterate a couple points, your goal for this paper should be to develop and advance a clear argument of your own, supported by a careful, detailed, and thoughtful discussion of the required readings for the course. Any additional research you do should supplement rather than displace your analysis of the relevant readings from the syllabus. In the course of your argument, you should probably reference at least a half-dozen of the primary documents that are reprinted in the casebooks, and perhaps many more. I plan to nominate the best paper completed for this assignment for a department-wide award.

This assignment is due in two parts. Assignment #3A is to produce a partial draft, approximately 4 pages in length, in which you identify and describe the constitutional development of interest and begin to articulate an argument about how and why it was significant. Assignment #3B is the complete 10-page paper, as described above. These components are worth 5% and 25% of your final grade, respectively. Due dates for both components are listed in the course schedule below.

Final exam (25% of your grade)

At the end of the semester, we will have a comprehensive, in-class, final exam. The exam will be closed-book, except that you may refer to your pocket Constitution. I will provide more details as the semester proceeds. 

Attendance and participation (15% of your grade)

This portion of your grade will be based on your in-class contribution to your own learning and that of your classmates. This contribution will require your physical presence in class, diligent preparation beforehand, and active engagement while you are there.

Physical presence is clear enough. We all have legitimate reasons for missing class on occasion, but I expect everyone to attend at least 85% of our class sessions. When you miss class, you should let me know when and why, and you should record the date for your own records. Diligent preparation requires that you read the assigned pages prior to class and, whenever possible, spend some time thinking or (even better) talking about the material before class as well. The closer you can come to eating, sleeping, and breathing Con Law for the next four months, the better you will do. Active engagement involves attentive listening, careful note-taking, responding to my questions in class, raising questions of your own whenever there's something you don't understand, and seeking help from me or the teaching assistant outside of class whenever necessary. I recognize that this sort of class participation comes with some risks; after all, you might say something that reveals your own lack of knowledge. Rest assured that no one will be penalized for being wrong or imprecise, for expressing uncertainty or frustration, or for changing their minds. But it should be clear that you are trying, that you have done the readings, and that you are working toward a mastery of the material.

I may schedule occasional quizzes to assess students' comprehension of the required readings.

Your participation grade will be assigned as follows: During the final week of the semester, you should submit a one-page self-assessment in which you assign yourself a letter grade (A, B+, etc.) for attendance and participation and then write a paragraph or two explaining and justifying that grade. For example, you might address the following questions:

The teaching assistant and I will read your self-assessment, compare it with our own perceptions, combine those with your performance on the quizzes, and then assign you a participation grade.

Course Policies

Attendance and course readings: As noted above, successful performance in this course will require eating, sleeping, and breathing Con Law. More literally, it will require regularly reading, writing, thinking, and talking about the course material. I've been teaching constitutional law for almost twenty years now, and I have yet to have a student find a shortcut around this fact. Reading, writing, thinking, and talking about the course material. Every day. Or as close to that as you can manage.

Among other things, this task will require regular attendance in class. If necessary, I will spot-check attendance on random days, but whether I'm checking or not, you should be there. Everyone misses class sometimes for legitimate reasons, but you should do your best to keep such absences to a minimum. When you miss a class, you will usually be able to listen to an audio recording of that lecture on-line. Those recordings are generally good enough to fill in the gaps caused by occasional absences, but they are not a good substitute for regular attendance. When you are in the room, you will be able to see the board, hear what I say without any volume issues, and most importantly, ask questions when you don't understand something. As such, irregular attendance will negatively affect your grade both directly (in the participation portion) and indirectly (by hindering your performance on exams and papers).

Laptops and other electronic devices: During class, your jobs are to listen actively, take careful notes, reflect on the concepts we are discussing, and participate in those discussions when you have something to say. None of these jobs requires a laptop, a tablet, or a phone, and the use of such devices during class can be quite distracting to students sitting nearby. As such, all electronic devices must be turned off and put away promptly at 9:30 a.m. and must stay put away until 10:50 a.m. FWIW, educational research has demonstrated that taking notes by hand (i.e., with pen or pencil) significantly improves the long-term retention and understanding of concepts; click here or here for a summary. 

Grading policy: Most of the written assignments for this course will be graded by a teaching assistant. If you have any questions about these written assignments, either before or after they are due, you are welcome to speak with either me or the TA. If you are dissatisfied with your grade on any assignment graded by a TA, you may appeal that grade to me. To do so, you should submit a clean copy of the paper to me, which I will re-grade from scratch. This means that you could receive a grade that is lower, higher, or the same as the grade originally assigned.

Late paper policy: Late papers will be accepted only under unusual circumstances, and only with my explicit permission (so don't bother pleading with the TA). If and when I agree to offer an extension, I will grade the late-arriving paper myself.

Academic support services: SU provides a variety of tutoring and academic support services, and I encourage you to avail yourself of these resources. Doing so may help you learn the course material better, determine the best strategies for studying that material, improve your writing skills, and have less stress about your success in the course. Tutoring centers include the Tutoring & Study Center (TSC), the Writing Center, the Math and Calculus Clinics, the Physics Clinic, the Chemistry Clinic, and the Athletics Academic Services Center. Further details are available here.

Academic integrity: The Syracuse University Academic Integrity Policy holds students accountable for the integrity of the work they submit. This means that it is your responsibility to be familiar with the policy in general and to learn about the specific expectations of each of your instructors regarding proper citation of sources in written work. The policy governs the integrity of work submitted in exams and assignments as well as the veracity of signatures on attendance sheets and other verifications of participation in class activities. Serious sanctions can result from academic dishonesty of any sort, but in my experience, the most common form of such dishonesty is plagiarism, which SU policy defines as "the use of someone else's language, ideas, information, or original material without acknowledging the source." If you are caught violating any of these rules, I will assign an F for the course and then refer the matter to the College of Arts & Sciences academic integrity coordinator for additional action. All papers for this course will be submitted electronically through Turnitin.com, a resource which aids students in assessing whether they have properly cited all sources and aids instructors in identifying instances of plagiarism.

Future use of student academic work: Any work that you produce as part of your participation in this course may be used for educational purposes in future courses. For example, if you write a very good paper, I may distribute it in future classes as a model. If and when I do so, I will always remove your name so that the work is rendered anonymous. In addition, Turnitin.com will maintain copies of all submitted papers in order to enhance its efforts to detect future plagiarism. 

Reasonable accommodation: If you believe that you need accommodations for a disability, please contact the Office of Disability Services (ODS), located in Huntington Hall (443-4498). ODS is responsible for coordinating disability-related accommodations and will issue Accommodation Authorization Letters when appropriate. Since accommodations may require early planning and generally are not provided retroactively, please contact ODS as soon as possible. 

Religious holidays: In accordance with SU policy, I will excuse any absences that result from religious observances, provided that you notify me in advance of the planned absence.

Office hours and email communication: The TA and I would like to get to know each of you as well as we can, in order to ensure that you are each mastering the course material to the best of your ability. As such, you are each required to visit me or the TA in our respective offices at least once during the semester. When you come to see one of us, I hope you'll have an interesting question about the course material, but you should come even if you do not have any such questions. We'll be keeping track, and we will not submit a passing grade for the course until you have visited one of us. You are, of course, welcome to visit us more than once--indeed, as many times as you like.  

My regular office hours are listed above, as are those of the TA. If you need to see us and you can make it during any of those day/time windows, you should just stop by. If you can't make it during those windows, you should send an email that goes to me and the TA, with an indication of some alternative days/times when you're free; one of us will get back to you with an appointment. Likewise, if you have a quick question that can likely be answered by email, send it to both me and the TA; whichever one of us gets to it first will reply. (But before you email us, you might want to look at this.)

Note also that I will sometimes use Blackboard's "Send email" feature to contact all members of the class. As such, you are responsible for regularly checking your SU email account.

Course Schedule

All required readings for the course are bulleted below. Most of the readings are from the Gillman, Graber, Whittington book, referred to in the schedule as "GGW". Other readings are generally available on-line, linked from this syllabus. 

 

As you may remember from Con Law I, our reading schedule is pretty ambitious. Do your best to keep up, reading all assigned pages in roughly the order in which they are listed. If you fall behind, come see me and we will develop a plan together for catching up.

 

Tues., Jan. 19: Introduction to the Course

 

Thurs., Jan. 21: Two Foundations of Modern Constitutional Law

 

In the early 1950s, the Vinson and Warren Courts issued two decisions whose legacies have shaped a fair amount of the constitutional development that we will discuss this semester: Youngstown Sheet & Tube Co. v. Sawyer (1952) and Brown v. Board of Education (1954). Read (or re-read) them both. Make sure you understand the basic legal holdings in each case--which at first glance don't have much to do with each other--but try also to identify some parallels between the two cases. What sort of approach to the constitutional text did the justices adopt in these cases? What sort of background historical conditions seem to have influenced their decisions?

I. The Constitution and the Long 1960s: A Rights Revolution

 

The period from 1954 to 1973 witnessed a remarkable expansion of constitutional rights and liberties in the United States. Historians sometimes call this period "the long 1960s." Why did this expansion take place when it did? Why not sooner? Did it fall short in some ways? Were there any ways in which it went too far?

 

Tues., Jan. 26: The Civil Rights Movement and the Constitution

 

Almost 100 years after the 13th, 14th, and 15th amendments were ratified, the reality of American law finally started to catch up with the promise of these constitutional guarantees. Why? In addition to the readings listed below, I also recommend these GGW materials on the Montgomery bus boycott.

 

Thurs., Jan. 28: Free Speech in the 1960s (and a Quick Review of Free Speech before the 1960s)

Tues., Feb. 2: The Anti-War Movement and the Constitution

 

Note: Assignment #2A (the one-page partial draft) is due today.

Thurs., Feb. 4: The Warren Court and the Democratic Process

Tues., Feb. 9: Church and State in the 1960s and 70s

Thurs., Feb 11: Economic Justice and the Constitution

Tues., Feb. 16: The Women's Movement and the Constitution I

 

What was the purpose of the Equal Rights Amendment (ERA)? Since the proposed amendment was never ratified, was the effort a failure?

Thurs., Feb. 18: The Women's Movement and the Constitution II

 

Before you read Roe v. Wade (1973), think about this question: Should the Constitution be understood to guarantee a right to abortion? Then read the case. Did anything in Justice Blackmun's opinion alter your thinking? What was it?

Mon., Feb. 22: Assignment #2B (the 5-page paper on the Warren Court) is due in Eggers 100 by 4:30 p.m.

 

Tues., Feb. 23: "The Criminal Forces v. the Peace Forces"

II. When the Country Turns Right, Does the Constitution Turn With It?

 

After FDR's and LBJ's Democratic Party dominated American politics for more than thirty years, the country took a right turn, beginning with Richard Nixon's election in 1968, picking up steam with the "Reagan revolution" of 1980, and reaching its peak during the era of George W. Bush. To what extent was this rightward electoral turn mirrored by a rightward constitutional turn? How and why did this happen?

 

Thurs., Feb. 25: Partisan Realignment and Constitutional Change: Nixon, Reagan, Bush, and the Courts

Tues., Mar. 1: Civil Rights in a Conservative Era I

 

Before you read University of California v. Bakke (1978), think about this question: Does the Constitution prohibit, allow, or require public universities to make explicit efforts to enroll diverse student bodies? Then read the case. Is there anything in Justice Powell's opinion that altered your thinking? How about Justice Marshall's opinion?

Thurs., Mar. 3: Civil Rights in a Conservative Era II

 

Continuing with our discussion of affirmative action, is there anything in the opinions in Grutter v. Bollinger (2003) or Parents Involved v. Seattle School District (2007) that altered your thinking? What do you think the Court's ruling in Fisher v. University of Texas (round II) should be? What do you think it actually will be?

 

Note: Case memos in Fisher v. University of Texas are due today.

Tues., Mar. 8: Congress v. the Presidency in the Age of Watergate

Thurs., Mar. 10: Congress v. the Presidency in the Reagan/Bush Era

Tues., and Thurs., Mar. 15 and 17: Spring break. No class.

 

 

Tues., Mar. 22: Executive Power Since 9/11

Recommended reading: Charlie Savage, Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy; Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration.

 

Thurs., Mar. 24: The Court v. Congress: Abandoning the New Deal?

 

In addition to the readings listed below, I also recommend U.S. v. Morrison (2000), in which SCOTUS struck down a provision of the 1994 Violence Against Women Act for exceeding the scope of federal power; the case originated with a sexual assault that took place at Virginia Tech.

Mon., Mar. 28: Paper assignment #3A is due in Eggers 100 by 4:30 p.m.

 

Tues., Mar. 29: The Court v. Congress: Having Second Thoughts?

 

Given the constitutional principles that we discussed last time, why has the Rehnquist/Roberts Court backed away from its "federalism revolution" over the past decade? Why did Chief Justice Roberts hold that the Affordable Care Act (aka Obamacare) is constitutional? What are the likely long-term implications of the Court's holding in NFIB v. Sebelius (2012)?

 

Note: Case memos in Franchise Tax Board of California v. Hyatt are due today.

Thurs., Mar. 31: The Conservative Court and the Democratic Process

 

In addition to the materials in GGW, read the short article by Jeffrey Toobin on Bush v. Gore's legacy and browse the SCOTUSBlog materials on Evenwel v. Abbott, currently pending at the Supreme Court. Which way do you think Evenwel should come out? Which way do you think it will come out?

 

Note: Case memos in Evenwel v. Abbott are due today.

Tues., Apr. 5: Crime and Justice in the Reagan/Bush Era

 

Why did the Burger, Rehnquist, and Roberts Courts turn away from some of the landmark Warren Court precedents regarding the rights of criminal defendants? Why didn't they abandon those precedents altogether? If you're interested in the Atkins case, note also Graham v. Florida (2010) and Miller v. Alabama (2012), all of which involve Eighth Amendment limits on criminal sentencing.

Thurs., Apr. 7: The Right to Life and the Right to Die

 

Note: Case memos in Whole Woman's Health v. Cole are due today.

Tues., Apr. 12: The LGBT Rights Movement and Constitutional Change

 

One of the most profound constitutional developments of the past couple decades is the sea change in the constitutional status of LGBT rights. Compare the Court's approach to such rights in Bowers v. Hardwick (1986) and Lawrence v. Texas (2003). Or compare the text and tone of the 1996 Defense of Marriage Act (DOMA) with the Supreme Court's holdings in U.S. v. Windsor (2013) and Obergefell v. Hodges (2015). Why did this change take place? How far is it likely to go?

Thurs., Apr. 14: Free Speech in a Conservative Era I

 

What is the conservative position on the freedom of speech? To what extent did the Burger and Rehnquist Courts adopt this position? How about the Roberts Court? In addition to the readings listed below, I also recommend FCC v. Pacifica Foundation (1978) and these excerpts from the 1986 Meese Commission Report on Pornography

Tues., Apr. 19: Free Speech in a Conservative Era II

 

After you read the assigned cases for today, revisit the question from last class: What is the conservative position on the freedom of speech? In addition to the readings listed below, I also recommend Rosenberger v. University of Virginia (1995) (which involves the right of a religious student organization to access student activity fees at a public university), R.A.V. v. St. Paul (1992) (which, like Virginia v. Black, involves the right to burn a cross as a form of racist intimidation), Agency for International Development v. Alliance for Open Society International (2013), McCullen v. Coakley (2014), Reed v. Town of Gilbert (2015), and Walker v. Sons of Confederate Veterans (2015)

 

Note: Case memos in Friedrichs v. California Teachers Association are due today.

Thurs., Apr. 21: Church and State in a Conservative Era I

 

Under the First Amendment, what role (if any) should religious devotion play in public schools?  

Mon., Apr. 25: Paper assignment #3B is due in Eggers 100 by 4:30 p.m.

 

Tues., Apr. 26: Church and State in a Conservative Era II

 

Under the First Amendment, when (if ever) should the government be allowed to endorse a particular set of religious beliefs? When (if ever) should the government be allowed to penalize the expression of a particular set of religious beliefs?

 

Note: Case memos in Southern Nazarene University v. Burwell (or Little Sisters of the Poor v. Burwell) are due today.

 Thurs., Apr. 28: Guns, Immigrants, and the Twenty-First Century Constitution

 

Before reading the materials below, take a look at your pocket Constitution and think about what provisions, if any, apply to immigrants. Why do presidents have to be born in the United States? Why does the Fourteenth Amendment refer to "citizens" in some places and "persons" in others? Take a look at the Second Amendment as well. What is its apparent purpose? How can that purpose best be translated into 21st-century terms?  

Tues., May 3: Exam review. No new reading, but your participation self-assessments are due in class.

 

Thurs., May 5: From 12:45-2:45 p.m., we will have a comprehensive final exam in our regular classroom. The exam is closed book, except that you may bring your pocket Constitutions with you.