Constitutional Law II
PSC 325 (Spring 2011)

Syracuse University

 

 

Tom Keck

Teaching Assistant: Erik French
tmkeck@maxwell.syr.edu

edfrench@syr.edu
Office hours: M 1:30-3:00, Tu 11:00-12:00 Th 11:30-12:30
Office location: Eggers 315 (443-5862) Eggers 027

Class Time and Location: T, Th 9:30-10:50, EGG 018

Prerequisite: It is customary to complete Constitutional Law I before taking this class. Students who have not done so should speak with the instructor 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 at times prevented the federal government from responding rashly to the demands of the moment, but it has regularly prevented the government from responding to important national problems as well. In similar fashion, the complex set of indirect elections and appointments that the framers designed for choosing our nation's lawmakers has at times succeeded in "filtering" and improving the public will, but it has regularly prevented the public's voice from being heard as well. And the life-tenured federal judiciary has at times stood as a valiant defender of individual liberty and minority rights, but has just as often served as a shield 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 examine the operation of 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.

As with Con Law I, this course is designed 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 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.

Course Readings

Most of the readings for the course are from two constitutional law casebooks, one published and one unpublished. The published book is David M. O’Brien's Constitutional Law and Politics, volume 2 (7th edition, 2008), available at the SU Bookstore. If you purchase it elsewhere, be sure to get the 7th edition, volume 2. (The ISBN# is 978-0-393-93039-9.) This is the only book you are required to purchase, but it is quite expensive (approximately $70.00). If this poses a hardship for anyone, please discuss this with me as soon as possible.

The unpublished book is Howard Gillman, Mark Graber, and Keith Whittington's American Constitutionalism, Volume 1: Structures of Government (designated "GGW" in the schedule below). The editors have made an electronic version of this casebook available for our use, free of charge. In the course schedule below, I have provided links to pdf files for each chapter of the casebook. Some of these files are quite long. You are responsible for printing them yourself (or for reading them on screen), so be sure to plan accordingly.

In addition to the GGW chapters, some additional required readings are also available on-line. As with the GGW chapters, they 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 5-page paper, a 10-12 page paper (which will be submitted in two parts), a final exam, and attendance and participation in class.

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 first paper requires no additional or outside reading, and I discourage you from doing any. The second paper may require some research of your own, but that research should be integrally linked with an analysis of material drawn from the course. In both papers, I'm 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 your TA before they are due. And lastly, please consult my paper expectations guide before completing each assignment.

Paper assignment #1

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 on 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.

This assignment is due in your TA's mailbox (in Eggers 100) by 4:30 pm on Monday, February 21. It is worth 20% of your grade.

Paper assignment #2

In a paper of approximately 10-12 pages, typed and double-spaced, describe and analyze the most significant constitutional development of your lifetime. I mean that literally; your paper should focus on some development that has taken place from the year of your birth--which you should indicate somewhere in the paper--to the present.

Note that the word "development" is intentionally vague. It could refer to one particular event--a specific Supreme Court decision, for example--but it could also refer to a broader category of events that are in some way connected. Once you've identified the development you wold like to examine, you should make the case for why it is significant. What happened? Why should we care? How does it relate to things that came before? Does 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 from the syllabus. 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 #2A is to produce a partial draft, approximately 4-5 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. This draft should be submitted in your TA's mailbox (in Eggers 100) by 4:30 p.m. on Monday, March 28. It is worth 10% of your grade.

Assignment #2B is the complete 10-12 page paper, as described above. It is due in your TA's mailbox by Monday, April 25, and is worth 30% of your grade.

Final exam (25% of your grade)

At the end of the semester, we will have a comprehensive, in-class, closed-book final exam. 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. Unlike Con Law I, this course will be taught without discussion sections. The downside of this change is that you won't have the same opportunity to discuss the course material in a smaller group. The upside--at least I think it's an upside--is that we will all be together twice a week for 80 minutes rather than 50, which will allow us to devote more time to discussion during those sessions.

As in Con Law I, your in-class contribution to everyone's learning 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. 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, raising a question whenever there's something you don't understand, and participating in classroom discussions with your fellow students and myself. I recognize that such 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.

Your participation grade will be assigned as follows: During the final week of classes, you should submit a one-page self-assessment in which you assign yourself a letter grade (A, B+, etc.) for participation and then write a paragraph or two explaining and justifying that grade. For example, you might address the following questions: How many times were you absent from class? How often did you participate in class discussions? When you didn't participate, were you nonetheless alert and prepared for class? If so, then why didn't you speak up on those occasions? How often did you do anything that disrupted class discussions or distracted your fellow students (e.g., chatting, sleeping, cell phone ringing, leaving the room during class, etc.)? Your TA and I will read your self-assessment, compare it with our own perceptions, and 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 more than ten years, and I've 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.

As such, attendance is mandatory, and frequent absences will negatively affect your grade. The same goes for frequent instances of being physically present but disruptive or otherwise inattentive to our collective learning process. Everyone misses class sometimes for legitimate reasons, but you should do your best to keep such absences to a minimum. When you miss class, you will usually be able to listen to an audio recording of that class on-line. If I happened to be primarily lecturing that day, the recording should be a good reproduction of the material you missed. When we devote significant class time to discussion, however, there is no substitute for being there. Irregular attendance will negatively affect your grade both directly (in the participation portion) and indirectly (by hindering your performance on exams and papers).

Grading policy: Most of the written assignments for this course will be graded by your 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 the 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 your 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. All schedules and locations are posted on the TSC website.

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 also 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 CAS academic integrity coordinator for additional action. For more information and the complete policy, see the Academic Integrity Policy and Procedures. 

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 remove your name so that the work is rendered anonymous. 

Reasonable accommodation: If you believe that you need accommodations for a disability, please contact the Office of Disability Services (ODS), located in Room 309 of 804 University Avenue (443-4498). ODS is responsible for coordinating disability-related accommodations and will issue students with documented disabilities Accommodation Authorization Letters, as 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: My regular office hours are listed above, but you are welcome to make an appointment for some other time, or simply to drop by. If you just have a quick question, I encourage you to reach me by email. In addition, I will regularly use Blackboard's "Send email" feature to contact all members of the class. This means that you are responsible for regularly checking your SU email account.

Course Schedule

All required readings for the course are bulleted below. The page numbers for the O'Brien text refer to the 7th edition, volume 2. The pages numbers for the GGW chapters refer to the numbers that appear at the bottom of each page in the pdf documents. Along with these chapters, several additional readings--those that are underlined--are also 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. 18: Introduction to the Course

 

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

 

The period from 1954 to 1973 witnessed a remarkable expansion of constitutional rights and liberties in the United States. We'll call this period "the long 1960s." Why did this expansion take place when it did? In what ways did it fall short? Note that our readings for these first few weeks include passages from the O'Brien book and GGW Chapter 8, each of which we used last semester, and from GGW Chapter 9 as well.

 

Thurs., Jan. 20: Brown v. Board of Education

Tues., Jan. 25: The Civil Rights Movement and the Constitution

Thurs., Jan. 27: Free Speech in the 1960s and 70s

Tues., Feb. 1: The Anti-War Movement and the Constitution

Thurs., Feb. 3: The Warren Court and the Democratic Process

Tues., Feb. 8: Church and State in the 1960s and 70s

Thurs., Feb 10: The Women's Movement and the Constitution I

Tues., Feb. 15: The Women's Movement and the Constitution II

Thurs., Feb. 17: Economic Justice and the Constitution

Mon., Feb. 21: Paper assignment #1 is due in your TA's mailbox (in Eggers 100) by 4:30 p.m.

 

Tues., Feb. 22: 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 (or nadir?) during the era of Bill Clinton, Newt Gingrich, and George W. Bush. To what extent was this rightward electoral turn mirrored by a rightward constitutional turn?

 

Thurs., Feb. 24: Partisan Realignment and Constitutional Change: The 1968 and 1980 Elections

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

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

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: President Bush at War

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

Mon., Mar. 28: Paper assignment #2A is due in your TA's mailbox (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 six years or so? What implications do these developments have for the constitutionality of President Obama's health care legislation? The Cuccinelli link below is to a December 2010 decision from Federal District Judge Henry Hudson declaring the health care law unconstitutional. This is one of a number of such cases working their way through the federal courts; one or more of them is likely to reach the Roberts Court by 2012. Note that Comstock and the Cuccinelli decisions are each quite long; read every word if you can, but if you're pressed for time, just skim for the main arguments from each opinion.

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

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? Note that the Graham decision is quite long; just skim for the main arguments in each opinion.

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

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

 

Around the same time that the Rehnquist Court was extending the Fourteenth Amendment to cover discrimination against gays and lesbians, it was also tweaking its approach to discrimination against women. We'll focus mostly on the former issue today, but if you have time, take a look at O'Brien, pp. 1533-1544, on the latter.

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

 

What is the conservative position on the freedom of speech? To what extent have the Rehnquist and Roberts Courts adopted this position?

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? The Martinez and Citizens United decisions are quite long; just skim them for the key points.

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

 

The Buono decision is quite long; just skim it for the key points.

Mon., Apr. 25: Paper assignment #2B is due in your TA's mailbox (in Eggers 100) by 4:30 p.m.

 

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

III. Constitutional Law and Politics in the Obama Era

 

Thurs., Apr. 28: Rights on the Left, and Rights on the Right

 

Thinking back on our discussions of the past few weeks, and reading these new materials as well, reflect on the current status of both liberal and conservative understandings of constitutional rights. Note that the Perry and Heller decisions are quite long. As usual, read as much as you can, but be sure to at least skim for the main arguments. If you're particularly interested in Heller, you should take a look at McDonald v. Chicago (2010) as well.

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

 

Fri., May 6: From 8:00-10:00 a.m., we will have a comprehensive, closed-book, final exam in our regular classroom.