Constitutional Law I(C) — Syllabus
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NOTE: This practice exam will have no effect on your grade, whether you turn it in or not. I will also make a model answer to everyone available later.
Optional anonymity: If you turn an answer in, you may do one of two things:
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There is no particular need for anonymity; the practice exam will not count toward your final grade. But you have the option if you wish.
I strongly suggest that you just look at or print out the cover page now, but do not look at or print out the practice exam question until you are ready to devote 60 minutes to writing an answer to it.
Note: For all the assignments in this syllabus, I suggest that you read over the questions about the material posted on the Current Assignments page before you begin reading the material, and then go over the questions after you have read the material. We may not discuss every single question posted on the Current Assignments page, and I may ask questions in class that I haven’t posted, but in general the questions on the page will reflect what we’re going to go over.
I. Introduction to the Study of Constitutional Law
CB 1-7; Supp. 1-9 (Toobin article)
1. What Is the Best Text?
a. The U.S. Constitution
CB xli-lvi (US Constitution); Supp. 10-11
b. Other Constitutions
The U.S. Constitution, amended as proposed by Levin, CB xli-lvi and Supp. 12-22
The Canadian Constitution, Supp. 23-55
The South African Constitution, Supp. 56-136
Supp. 137-140 (Field, Williams articles)
2.What Is the Authoritative Version of the Text of the U.S. Constitution?
Supp. 141-163; CB 134-136 (note 4)
3. Is a Constitution More than the Text?
Supp. 164-167, 168-178 [Quebec case and statute]; CB 83-84 (Note 1, Advisory Opinions)
4. Does the Text Govern Changes to the Text?
CB xli-lvi (US Constitution)
CB 134-136 (Note 4)
C. The Adoption of the U.S. Constitution: Federalist and Anti-Federalist Perspectives
CB 7-25; Supp. 199-202
D. Interpreting the U.S. Constitution: Two Case Studies
1. Heller v. District of Columbia
CB 48-52; Supp. 203-204 (Liptak article)
2. The Bank of the United States and the Powers of the Federal Government
A. Introduction: The Power of Judicial Review
1. Marbury v. Madison
Supp. 205-212 (review), Supp. 216-219
2. Martin v. Hunter’s Lessee; Judicial Exclusivity in Constitutional Interpretation
Note: On Supp. 229, the last four words of line 2 should be “of a State in,” not “or a State in”. Corrected Supp. 229.
B. The Uses of Judicial Review: Slavery
CB 65-69, 453-464; CB xli, xliv, xlvii-xlviii [Art. I § 2 cl. 3, Art. I § 9 cl. 1; Art. IV §§ 2, 3]
C. Limitations on the Powers of the Federal Courts
1. Political Control of the Supreme Court
CB 69-82, 155-158
2. Advisory Opinions, Standing and the Political Question Doctrine
a. Advisory Opinions
CB 82-84; CB xlvi (Art. II § 2 cl. 2)
i. Allen v. Wright
ii. Conceptualizing Injury; Widespread Injuries
CB 106-117 (through Note 4); CB xliii [Art. I § 6 cl. 2]
iii. Likelihood of Injury
CB 89-97, 117-118 (Note 5)
CB Supp. 1-11
iv. Massachusetts v. EPA; Newdow, Perry, and Windsor
CB 97-106, 118-121, CB Supp. 12-15
v. Standing to Challenge the Individual Mandate in the Health Care Bill
Supp. 232-233, 233A
c. Political Question Doctrine
CB 121-141, CB xli, xliii [Art. I §§ 2,3,6,7], li-lii [14th Am. § 3]
d. Standing and Political Question Doctrine: Two Case Studies
i. Common Cause v. Biden
ii. Bush v. Gore
CB 142-153; CB xlv [Art. II § 1 cl. 2], CB l-li [Twelfth Amendment]
e. Ripeness & Mootness
B. Approaches to Determining the Distribution of Federal Powers
C. The President, Congress, and Foreign Affairs
1. Executive Authority in Foreign Affairs
CB 382-389, 409-411
Supp. 39 (Constitution Act, 1867 [Canada], § 132) New!
Supp. 66, 114-115 (South African Constitution, § 39; §§ 231-233) New!
2. The Use of Force
CB 389-391 (through Note 1), 406-411
Supp. 247-251 [the War Powers Resolution]
Supp. 64-66, 70, 74, 77-79, 107-108
(South African Constitution § 37; § 55; § 73; § 77; §§ 83-85; §§ 200-204) New!
3. The “War on Terror”
a. Hamdi v. Rumsfeld
CB 391 (Note 2)-400
b. Hamdan,, Boumediene, and Other Issues
D. Domestic Affairs
1. Executive Privilege, Impeachment, and Immunity
CB 411-424; CB xliii [Art. I § 6 cl. 1]
2. Nondelegation/Administrative Authority
CB 424-429, 435-439
Supp. 252-253 [Bush Administration bailout proposal]
3. Administrative Agencies and the Separation of Powers
a. Textualist/Strict Separation Approaches
i. INS v. Chadha
ii. Bowsher and Metropolitan Airports
CB 439-441, 451 (Note 5)
b. Pragmatic Approaches
CB 441-451 (through Note 4)
4. Recess Apppointments
A. The Purpose of the Commerce Clause / The First Period of Interpretation of the Commerce Clause
CB 159-169, 172-175 (through Note 2), 177-179 (Notes 4-9)
B. Before the New Deal: The Second Period of Interpretation of the Commerce Clause
1. Limits on Congress’s Powers CB 179-185 (through “Note: Prohibiting Interstate Transportation”), CB 169-170
CB 185-193 (through Note 4), CB 1555-1560
2. Limits on State Powers: Lochner v. New York
CB 750-766; CB 65-69 (Calder v. Bull, natural law) (review)
C. The New Deal and Its Legacy: The Third Period of Interpretation of the Commerce Clause
CB 192 (Note 5)-199, 171-172, 199-203, 766-776
D. Contemporary Interpretations of the Commerce Clause
1. “Internal” Limits on the Scope of the Commerce Clause Power
a. In General
b. Health Care: The Individual Mandate
2. The Tenth Amendment as an External Limit on the Scope of Commerce Clause Power
CB 175-177 (Note 3), 351-365
E. Other Powers of Congress