I.    Introduction

In this section we will cover some basic questions about the adoption and nature of the U.S. Constitution, and of constitutions generally. What is the best approach to drafting a constitution? What does it mean to have a constitution? Why should any text adopted long before the current era bind people today? How should a constitution be interpreted? By focusing predominantly on the textual? On the framers’ intent? On evolving or contemporary circumstances? And how should a constitution be revised?

1. Approaches to Constitutional Texts, Adoption, and Revision
   1. Constitutional Texts
      The U.S. Constitution, CB xxxvii-l
      The Canadian Constitution, Supp. 3-37
      The Constitution of the Republic of South Africa, Supp. 38-122
   2. Adoption of Constitutions
      
      1. The Canadian and South African Constitutions
         Supp. 1-2 (Canada)
         Supp. 123-126 (South Africa)
      2. The U.S. Constitution CB 1-19
         
   3. Constitutional Revision
      The U.S. Constitution, CB xxxvii-l
      The Canadian Constitution, Part V, Supp. 33-35
      The South African Constitution, § 74, Supp. 56-57
      Supp. 127-136 (amendment by referendum; unconstitutional amendments; the role of courts in constitutional amendment)
      
   4. Incorporating Constitutional Amendments into Constitutions
      Supp. 137-154 (Hartnett)
2. Why Should Democratic Societies Be Constrained by a Constitution?
   CB 19-22
3. Approaches to Constitutional Interpretation
   1. Does the Text Tell Us Everything? Reference re Secession of Quebec
      Supp. 155-166; CB 76-77, CB xli (Art. II § 2 cl. 1)
      CB 342-343 (Curtiss-Wright)
   2. Methods of Interpretation
      1. Textualism: The Constitution and Slavery
         Supp. 167-185
         
      2. Original Intent
         
         1. Heller v. District of Columbia
            CB 43-49
            
         2. Home Building & Loan Ass’n v. Blaisdell
            CB 826-829 (through Note 2)
         3. Consumer Financial Protection Bureau v. Community Financial Services Ass’n of America, Ltd
            Supp. 186-205; Supp. 206-215 (optional)
            
      3. Deference: The Bank of the United States and the Powers of the Federal Government
         
         1. McCulloch v. Maryland
            CB 49-60
            Supp. 216-218 (Dudgeon)
            
         2. Putting a Constitution into Practice
            Supp. 219-225 (Lynch)

II.    The Role of the Federal Courts in the Constitutional Framework

In this section we will examine closely the role of the courts in interpreting and enforcing the Constitution, with particular attention to judicial review (i.e., the power of the courts to declare a statute or regulation unconstitutional). As part of this examination we will look at the Supreme Court’s early use of judicial review. We will also consider the power of Congress to limit judicial review, and the self-imposed restraints that the courts put on their power of judicial review (through doctrines such as standing and political question). We will close with a look at the current controversy over what is widely called the Court’s shadow docket.

1. The Origin of the Power of Judicial Review
   
   1. Marbury v. Madison
      CB 22-34
      Optional background on Marbury v. Madison: Susan Low Block, The Marbury Mystery: Why Did William Marbury Sue in the Supreme Court?, 18 Const. Comment. 607-627 (2001)
      
   2. Martin v. Hunter’s Lessee
      CB 34-39
      Supp. 224-225 (The Judiciary Act of 1789, § 25)
      
2. Judicial Exclusivity in Constitutional Interpretation
   CB 40-43
   Supp. 226-227 (Veto Message of President Jackson)
   
3. Limitations on the Powers of the Federal Courts
   
   1. Political Control of the Supreme Court
      
      1. Criticism, Amendments, Appointments, Impeachment
         CB 64-69; Supp. 228-237; Supp. 238-248 (Revised: Moved to Section II.C.3.b); Supp. 249-251
         
      2. Control of Jurisdiction
         CB 69-75 (McCardle, Yerger, Klein)
         CB 150-152
         Supp. 252-256
   2. Advisory Opinions, Standing and Political Question Doctrine
      
      1. Advisory Opinions
         CB 76-77; CB xli-xliii (Art. II § 2 cl. 2)
         Supp. 257
      2. Standing
         
         1. Introduction
            Supp. 258-262 (Allen v. Wright)
            CB 118 (Note 3) (Dept. of Commerce v. NY)
            Supp. 263-265 (FDA v. Alliance for Hippocratic Medicine)
         2. Injury/Causation/Redressability: A Closer Look
            
            1. Lujan v. Defenders of Wildlife
               CB 77-85, 100-101 (Note)
               
            2. Massachusetts v. EPA
               CB 85-92 (Massachusetts v. EPA)
               
            3. Clapper v. Amnesty International USA
               CB 92-100
               
         3. Conceptualizing Injury, Causation, and Redressability; Congressional Power to Define Injury
            
            1. Historical Development of Standing and Injury in Fact Doctrine
               CB 100-103 (through Note 1)
               
            2. The Nexus Requirement/Conceptualizing Injury
               CB 112-114 (“Nexus”)
            3. Procedural Violations
               CB 104-107 (Note 3)
               
            4. Threatened Injury
               CB 107 (Note 4)
            5. Widely Diffused Harms
               CB 107-111 (Note 5)
               
            6. De Minimis Harms
               CB 111-112 (Note 6)
            7. Prudential Limits on Standing
               Supp. 266-267 (Elk Grove Unified School District v. Newdow)
               CB 118-119 (Notes 1 & 2)
   3. Political Question Doctrine
      
      1. Baker v. Carr; Luther v. Borden
         CB 120-123, 139-140 (Note 6)
         
      2. Powell v. McCormack, Nixon v. United States, Goldwater v. Carter, Zivotofsky ex rel. Zivotofsky v. Clinton; Constitutional Amendments
         CB 131-139 (Notes 1-5)
         Supp. 238-248
         
   4. Ripeness & Mootness (optional)
      CB 149-150
      
4. The Court’s Processes
   1. Jurisdiction, Certiorari, and the U.S. Supreme Court
      CB 150-152
   2. The “Shadow Docket” Controversy
      Supp. 268-301
      

III.    Separation of Powers: The Allocation of Powers within the Federal Government

In this section we will examine the allocation of power within the federal government. We will begin with a look at a major case (Youngstown) that provides a good vehicle for thinking about how to approach constitutional interpretation and the proper role of the courts in this area. We will then take closer looks at separation of powers in foreign affairs and domestic contexts. In the domestic context, one of the areas we will look at relates to the role of “independent” administrative agencies such as the Federal Trade Commission or the Securities and Exchange Commission. It helps to have some familiarity with how the federal government is structured today. If you are unsure whether you need more background, there are many online sources you can consult. Below are two very basic ones and a more scholarly treatment:
• Independent Executive Agencies of US Government, ThoughtCo.
• American Government, §§ 8a, 8b, and 8c.
• Independent Agencies in the United States

IV.    Federalism: Shifts in the Allocation of State and Federal Powers and in the Court’s Role vis-à-vis Congress

In this section we will examine the allocation of power between the federal government and state governments. While U.S. history and the history of constitutional doctrine are important throughout the course, this is one area where we will particularly examine the evolution of doctrine. The question of federalism is mediated primarily through interpretation of the Commerce Clause (Art. I § 8 cl. 3, CB xxxix), and that interpretation has changed markedly over time and remains in flux today. As we will see, the answer to the question -- what is the responsibility of the Court and Congress in determining the proper allocation of federal and state power under the Constitution? -- has also shifted over time. We will also take a look at some other federalism issues, such as those raised by the power to tax and spend.

Note: As you will see, there is a fair amount of jumping around in the pages of the casebook in this section. The casebook’s selection and editing of the cases, and its notes and comments on them, are generally excellent. I prefer, however, to cover the evolution of the doctrine in chronological order, as the Court shaped and changed it over the years. The casebook editors have taken a different approach, which means that to cover the cases in chronological order, we will often read the material in a different order from that in which it appears in the casebook.

Finally, it helps to have some overall familiarity with the roles of federal and state governments today, and the history behind it. If you are unsure whether you need more background, there are many online sources you can consult.

• A very basic one is this on-line free textbook, American Government: Chapter 3 (offered by Rice University’s OpenStax).
• A helpful short analysis by two prominent constitutional scholars is this post on the National Constitution Center’s website: Randy E. Barnett & Heather Gerken, Article I, Sec. 8: Federalism and the Overall Scope of Federal Power

1. Introduction to Federalism
   
   1. Functions of Federalism
      CB 153-159, 166-169 (through Note 3), 171-172 (Notes 5 & 8)
      CB xxxix (U.S. Const. Art. I §§ 8 and 10), xliii-xliv (Art. VI), xlv (Tenth Amendment); CB xlvii (Seventeenth Amendment)
      
   2. Styles of Constitutional Drafting
      CB xxxix (Art. I § 8 cl. 3 (commerce clause)); CB xlvi (Art. VI § 2 (supremacy clause))
      South African Constitution, § 44, Supp. 49-50; Schedules 4 & 5; Supp. 102-104; §§ 146-150, Supp. 74-75
      Constitution Act, 1867 (Canada), Art. VI (with main focus on §§ 91, 92), Supp. 14-17; Constitution Act, 1982, § 52, Supp. 35
      
2. The Interpretation of the Commerce Clause from the Marshall Court to Today
   1. The Commerce Clause and Congress’s Powers: The First Era of Interpretation
      CB 159-162
      
   2. Before the New Deal: The Second Era of Interpretation of the Commerce Clause
      
      1. Commerce Clause Limits on Congress’s Powers
         CB 172-178 (through “Note: Prohibiting Interstate Transportation”); CB 162-164; CB 178-183 (through Note 3)
   3. The New Deal and Its Legacy: The Third Era of Interpretation of the Commerce Clause
      
      1. Jones & Laughlin, Darby, and Wickard
         CB 183 (Note 4)-190 (through Note 2), 164-166
         
      2. Later Commerce Clause Cases
         CB 190 (Note 3)-193 (through “Note: Federalism and Congressional Motivation”)
         
   4. Contemporary Interpretations of the Commerce Clause & the Tenth Amendment: The Fourth Era
      
      1. “Internal” Limits on the Scope of the Commerce Clause Power
         
         1. United States v. Lopez
            CB 194-199, 201-202 (Notes 1 & 2), 204 (Note 6)
            
         2. Morrison, Raich & Comstock
            CB 199-203 (through note 4)
            
         3. Health Care: The Individual Mandate
            CB 205-223
            
      2. Commandeering? The Tenth Amendment as an “External” Limit on Congress’s Powers
         CB 318-325, 325-329 (Notes 1, 2, 3, 5 & 7)
         
3. Other Powers and Limitations
   
   1. The Spending Power
      
      1. Butler, Steward Machine & Dole
         CB 271-272, CB 277-282, 290-292 (Notes 1, 4 & 5)
         
      2. Health Care: The Medicaid Expansion
         CB 282-289, 291 (Notes 2 & 3)
         
   2. The Taxing Power (optional)
      
      1. In the Third Era, Before the New Deal Crisis
         CB 272-274
         CB 278-280 (Butler) (review)
         CB xxxix (Art. I § 8 cl. 1); CB xxxvii (Art. I § 2 cl. 3); CB xl (Art. I § 9 cl.4); CB xlvii (Am. XVI)
         
      2. Health Care: The Shared Responsibility Payment (Penalty)
         CB 274-277