Section 1
Spring 2021
HU Course No. 600-612
last update 29 March 2021
This syllabus is subject to change to address current constitutional law developments and to meet the students' needs as perceived by the professor during the semester.
This course explores the power relationships enshrined in the United States Constitution. In this course you will examine the basic structures of the U.S. constitutional system, aspects of federalism including the balance of power between the federal government and the states, the historical development of the Supreme Court as an institution, the philosophical justifications for the exercise of judicial review and judicial authority of judges in a democratic society, and the various methods of legal reasoning that are brought to bear in interpreting the Constitution. Among the specific topics to be examined are judicial power including judicial review, jurisdiction, and the 11th Amendment; congressional power including the commerce power, spending power, Taxing power, and congressional power under the Reconstruction Amendments; executive branch including executive privilege and executive power over international relations and other matters; and the separation of power among the branches of government.
Required
The Constitution
Steven D. Jamar, Constitutional Law: Power, Liberty, Equality (Wolters Kluwer 2017) ISBN 9781454870326. 2020 Supplement (pdf download) and other supplemental materials to be provided from Prof. Jamar from time to time.
Recommended Books
Additional Perspectives
Brian Landsberg and Leslie Jacobs, Global Issues in Constitutional Law (Thompson West 2007)
Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (Oxford University Press 2006) (paperback edition 2007)
Study Aids
Allan Ides & Chistopher N. May, Constitutional Law: National Power and Federalism – Examples and Explanations (8th ed. Wolters Kluwer 2019) ISBN-13: 9781543805949
Past exams (downloadable from the CL1 course homepage)
Office:
402 Houston Hall
Phone:
Email:
stevenjamar@gmail.com (I will typically respond to email within 24 hours.)
Office Hours:
The times listed below may change. I will post up-to-date office hours online at http://sdjlaw.org/index
Mon
2:40-4:00
Tues
2:40-3:40
Thur
2:40-3:40
Occasionally I will not be able to keep these office hours because of other commitments.
If you need to see me at another time, please contact me so we can make an appointment.
These hours will be expanded in the latter part of the semester as student demand increases.
Final Examination
100 pts.
Read the assigned material before class each day. Be prepared to orally brief the cases and discuss the problems presented by the readings.
The law school attendance policy will be enforced. Tardy students and students who leave class early or who leave and come back will be counted as absent.
Please note that this schedule identifies the topics to be considered in the order in which they will be considered and identifies the readings for the topics. At the end of each class, the readings for the next class will be assigned.
Part I. Foundational Principles and Cases
Constitution Articles 1, 2, 3 & Amends. 1, 5, 10, 11, 14
Part I Foundations
Jamar ch. 1 Studying Constitutional Law (2017) pp. 1-13; Jamar 2020 Supp. p. 1-3
Role of the Judiciary in Constitutional Interpretation, Jamar ch. 2 Foundational Principles and Cases (2017) pp. 13-48
Marbury v. Madison (1803) pp. 19-31
Martin v. Hunter's Lessee (1816) pp. 32-35
Worcester v. Georgia (1832) (Trail of Tears case) pp. 37-43
Ex parte McCardle (1868) pp. 46-47
Approaches to Constitutional Interpretation Jamar ch. 2 Foundational Principles and Cases (2017) pp. 48-65
Calder et Wife v. Bull et Wife (1798) pp. 50-53
McCulloch v. Maryland (1819) pp. 54-63
Federalism: Federal Power, State Power, and the Balance Between Them, Jamar ch. 2 Foundational Principles and Cases (2017) pp. 65-96
Race and the Constitution Jamar, ch. 2 Foundational Principles and Cases (2017) read pp. 96-107; 107-113; 129-30; 139Chisholm v. Georgia (1793) pp. 67-74
Dartmouth College v. Woodard (1819) pp. 75-80
Gibbons v. Ogden (1824) pp. 83-92
Cooley v. Board of Wardens of the Port of Philadelphia (1851) pp. 92-95
Part II. Federal Power
Introduction pp. 141-42
Judicial Function and Power Jamar, ch. 3 Judicial Power (2017)
Constitutional grant of judicial power, Jamar, ch. 3 Judicial Power (2017) pp. 143-46
Congressional power with respect to the judiciary, Jamar, ch. 3 Judicial Power (2017) pp. 146-49
Justiciability, Jamar, Judicial Power (2017) pp. 149-95
Justiciability -- Case or Controversy, Jamar, ch. 3 Judicial Power (2017) pp. 150
Justiciability -- Advisory opinions, Jamar, ch. 3 Judicial Power (2017) pp. 150-54
Justiciability -- Standing, Jamar, ch. 3 Judicial Power (2017) pp. 154-79
Lujan (1992) (standing basics and case or controversy aspects of standing) pp. 156-62
Congressional Power to Expand Standing pp. 162
Windsor (2013) (prudential aspects of standing) pp. 163-64
Allen v. Wright (1984) (substantive effects of standing) pp. 167-73
Standing -- Special cases pp. 173-74
Standing -- Organizational and 3rd party standing pp. 175-76
Justiciability -- Ripeness, Jamar, ch. 3 Judicial Power (2017) pp. 179-81
Justiciability -- Mootness, Jamar, ch. 3 Judicial Power (2017) pp. 181-83
Justiciability -- Political Question Jamar, ch. 3 Judicial Power (2017) pp. 183-94; 2020 Supp. pp. 2-14
Baker v. Carr (1962) pp. 184-92
Rucho v. Common Cause (2019) 2020 Supp. pp. 2-14
Legislative Power
Introduction to Congressional Power, Jamar Ch. 4 (2017) pp. 199-203
Commerce Clause Jamar ch. 5
Introduction to the Commerce Clause power, Jamar Ch. 5 Commerce Clause (2017) pp. 203-05
Review Gibbons v. Ogden (1824), Jamar Ch. 2 Foundational Principles and Cases (2017) pp. 83-92National Federation of Independent Business v. Sebelius (2012), Jamar Ch. 5 Commerce Clause (2017) pp. 205-31 (Although we will not cover all of NFIB in one day, I strongly recommend you work through it all because reading the concurrence and dissent should help you understand the majority opinion.)
Narrow construction of "commerce among the states" (1865-1937), Jamar Ch. 5 Commerce Clause (2017) pp. 233-34
Post-1937 Interpretation of the Interstate Commerce Clause, Jamar Ch. 5 Commerce Clause pp. 234-47
Wickard v. Filburn (1942) pp. 235-38
Post-Wickard Applications of Commerce Clause Power Jamar Ch. 5 Commerce Clause (2017) pp. 238-47
Heart of Atlanta v. United States (1964) pp. 239-45
The Court Shifts Again: Federalism-based Limitations on Federal Power over Interstate Commerce
Jamar Ch. 5 Commerce Clause (2017) pp. 247-65
United States v. Lopez (1995) pp. 249-57
Gonzales v. Raich (2005) pp. 258-62
Power over States under the Federal Commerce Clause Power, Jamar Ch. 5 Commerce Clause (2017) pp. 266-69
Comparative Perspective on Governmental Power, Jamar Ch. 5 Commerce Clause (2017) pp. 269-70
Taxing Power Jamar ch. 6 Taxing and Spending Powers pp. 273-85
Nat'l Federation of Independent Business v. Sebelius, 567 U.S. ___ (2012) Jamar ch. 6 Taxing and Spending pp. 277-85Spending Power Jamar ch. 6 Taxing and Spending Powers pp. 285-96
Nat'l Federation of Independent Business v. Sebelius (2012) Jamar ch. 6 Taxing and Spending pp. 286-94
Severability Jamar ch. 6 Taxing and Spending pp. 296-98
National Federation v. Sebelius (2012) (majority) pp. 291-92; (4 justice dissent) pp. 293-94
Necessary and Proper Power and Other Powers Jamar ch. 7 Necessary and Proper and Other Powers pp. 301-15
Necessary and Proper Jamar ch. 7 Necessary and Proper and Other Powers pp. 301-10
Bankruptcy Jamar ch. 7 Necessary and Proper and Other Powers p. 310Review: McCulloch v. Maryland (1819), Jamar ch. 2 Foundational Principles and Cases pp. 54-63
United States v. Comstock (2010)), Jamar ch. 7 Necessary and Proper pp. 303-07
Review: National Federation v. Sebelius (2012) Jamar Ch. 5 Commerce Clause (Roberts' opinion) pp. 206-07, 215-16;
Review: Ginsburg dissent in National Federation (2012) Jamar Ch. 5 Commerce Clause pp. 226-28
Intellectual Property Power Jamar ch. 7 Necessary and Proper and Other Powers pp. 310-11
Immigration and Naturalization Jamar ch. 7 Necessary and Proper and Other Powers pp. 311-13
Congressional Power to Implement a Treaty Domestically Jamar ch. 7 Necessary and Proper and Other Powers pp. 313-15
Missouri v. Holland (1920) (in notes) Jamar ch. 7 Necessary and Proper and Other Powers pp. 313-14
Congressional Power under the Reconstruction Amendments Jamar Ch. 8 Reconstruction Amendments pp. 317-60
Race and the Constitution, Jamar Ch. 2 Foundational Principles and Cases (2016) pp. 96-129
Read: Prigg v. Pennsylvania (1842) pp. 101-04
Read: Dred Scott v. Sandford (1857) pp. 105-07
Read: Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D. Pa. 1823) p. 112
Study: The Slaughter-House Cases (1873) pp. 112-19
Study: United States v. Cruikshank (1876) pp. 121-24
Study: The Civil Rights Cases (1883) pp. 124-29
Read: Plessy v. Ferguson (1896) pp. 130-38
Slavery, the Civil War, Reconstruction, and the Constitution Jamar ch. 8 Congressional Power: The Reconstruction Amendments pp. 317-18
Congressional Power under the 14th Amendment Jamar ch. 8 pp. 318-39
City of Boerne v. Flores (1997) pp. 322-29
Nevada Department of Human Resources v. Hibbs (2003) pp. 334-47
Congressional Power under the 15th Amendment Jamar ch. 8 pp. 339-48
Shelby County v. Holder (2013) pp. 340-47
Congressional Power under the 13th Amendment Jamar ch. 8 pp. 348-59
Jones v. Alfred H. Mayer Co.(1968) pp. 357-59
Summing up Congressional Power under the Reconstruction Amendments Amendment Jamar ch. 8 pp. 359-60
Executive Power Jamar ch. 9 Executive Power pp. 363-438; 2020 Supp. pp. 14-24
Introduction to Executive Power Jamar ch. 9 Executive Power pp. 363-66
President as Commander in Chief and the Use of Force Jamar ch. 9 Executive Power pp. 366-90
Presidential Power to Respond to Military Emergencies (1863) Jamar ch. 9 Executive Power pp. 369-90The Prize Cases (1863) Jamar ch. 9 Executive Power pp. 370-73
After The Prize Cases (1863) Jamar ch. 9 Executive Power p. 373
War Powers Applied Domestically Jamar ch. 9 Executive Power p. 373-75Youngstown Sheet & Tube Co. v. Sawyer (1952) Jamar ch. 9 Executive Power pp. 375-84
The Power to Declare War Jamar ch. 9 Executive Power pp. 384-90
Congressional Power over Foreign Relations – Authorizing the Use of Military Force Jamar ch. 9 Executive Power pp. 385-89
War Powers Resolution of 1973 Jamar ch. 9 Executive Power pp. 385-87
Executive Power over International Relations Jamar ch. 9 Executive Power pp. 390-404President Nixon’s Veto of the War Powers Resolution of 1973 Jamar ch. 9 Executive Power pp. 387-89
United States v. Curtiss-Wright Export Corp. (1936) Jamar ch. 9 Executive Power pp. 390-93
Executive Power to Recognize Foreign States Jamar ch. 9 Executive Power pp. 393-94
Treaty Power Jamar ch. 9 Executive Power pp. 394-404
Settling International Disputes Jamar ch. 9 Executive Power pp. 395-404Dames & Moore v. Regan (1981) Jamar ch. 9 Executive Power pp. 395-99
Domestic Application of Treaties Jamar ch. 9 Executive Power pp. 399-403Medellin v. Texas (2008) Jamar ch. 9 Executive Power pp. 400-03
Legislative Power of the Executive Branch Jamar ch. 9 Executive Power pp. 404-06
Executive Orders Jamar ch. 9 Executive Power p. 404
Signing Statements Jamar ch. 9 Executive Power p. 405
The Executive Power to Execute the Laws Jamar ch. 9 Executive Power pp. 406-20
The Theory of the Unitary Executive Jamar ch. 9 Executive Power pp. 406-07
Administrative Agencies Jamar ch. 9 Executive Power pp. 407-13
Whitman v. American Trucking Associations, Inc. (2001) Jamar ch. 9 Executive Power pp. 409-12
Administrative Agencies and the Executive Power Jamar ch. 9 Executive Power pp. 412; Jamar 2020 Supp. pp. 14-15
The Executive Power of Appointment and Removal Jamar ch. 9 Executive Power pp. 413-20; Jamar 2020 Supp. pp. 14-24 (insert in page 413 of main text)Lucia v. Securities and Exchange Commission (2108) Jamar 2020 Supp. pp. 16-24
Morrison v. Olson (1988) Jamar ch. 9 Executive Power pp. 414-19
Limits on Congressional Power over the President’s Power of Appointment and Removal Jamar ch. 9 Executive Power pp. 419-20Executive and Presidential Privilege and Immunity Jamar ch. 9 Executive Power pp. 420-38
Executive Privilege Against Disclosure of Information Jamar ch. 9 Executive Power pp. 421-25
United States v. Nixon (1974) Jamar ch. 9 Executive Power pp. 421-25Presidential Immunity from being sued Jamar ch. 9 Executive Power pp. 426-35
Nixon v. Fitzgerald (1982) Jamar ch. 9 Executive Power pp. 426-30
Introduction to Clinton v. Jones (1997) Jamar ch. 9 Executive Power p. 430Clinton v. Jones, 520 U.S. 681 (1997) Jamar ch. 9 Executive Power pp. 430-35
The Impeachment of President William J. Clinton (1993-2001) Jamar ch. 9 Executive Power pp. 435-36
Non-presidential Executive Privilege and Immunities Jamar ch. 9 Executive Power pp. 436-37
Impeachment: Relevant clauses from the Constitution
Separation of Powers Jamar ch. 10 Separation of Powers pp. 441-70
Introductory Note Jamar ch. 10 Separation of Powers pp. 441-42
Bicameralism and Presentment– the "Legislative Veto" Jamar ch. 10 Separation of Powers pp. 442-50
INS v. Chadha (1983) Jamar ch. 10 Separation of Powers pp. 443-49
Line Item Veto Jamar ch. 10 Separation of Powers pp. 450-54
Clinton v. City of NY (1998) Jamar ch. 10 Separation of Powers pp. 450-54
Legislating in the Judicial Branch Jamar ch. 10 Separation of Powers pp. 454-57
Habeas Corpus -- Congressional and Executive Interference with the Judiciary Jamar ch. 10 Separation of Powers pp. 457-68
Boumediene v. Bush (2008) Jamar ch. 10 Separation of Powers pp. 457-68
Part III Federal Constitutional Limitations on
State Power
Introduction to Federal Constitutional Limits on State Power Jamar Ch. 11 pp. 473
State Power and Federal Constitutional Limits on It Jamar Ch. 11 pp. 471-536
Preemption Jamar Ch. 11 pp. 473-88
Introduction to Preemption pp. 473-74
Field Preemption Jamar Ch. 11 pp. 475-80
Pacific Gas v. State Energy Resources Commission (1983), Jamar Ch. 11 pp. 475-80
Conflict Preemption Based on Frustrating the Purpose of the Federal Law Jamar Ch. 11 pp. 480
Implied Preemption and Immigration Jamar Ch. 11 pp. 480-87
Arizona v. United States (2012) Jamar Ch. 11 pp. 482-87
Preemption and Anti-Commandeering
Murphy v. NCAA (2018) Jamar 2020 Supp. p. 41 (we will study the case under the Anti-Commandeering section below)
Dormant Commerce Clause, Jamar Ch. 11 State Power and Federal Constitutional Limits on It pp. 488-526; Jamar 2020 Supp. (dormant commerce clause and the 21st Amendment; state taxation of interstate commerce) pp. 24-41
Introduction to the Dormant Commerce Clause, Jamar Ch. 11 pp. 488-90
Defining Mid-20th Century Cases, Jamar Ch. 11 pp. 490-92
South Carolina State Highway Dept. v. Barnwell Bros., Inc. (1938) pp. 490-91
Southern Pacific Co. v. Arizona (1945) pp. 491-92
Dormant Commerce Clause–Discrimination, Jamar Ch. 11 pp. 492-505
Dean Milk Co. v. Madison (1951) pp. 493-95
Discrimination–More Milk Jamar Ch. 11 p. 495-96
Discriminatory Effect of a Facially Neutral Regulation Jamar Ch. 11 pp. 496-99
Hunt v. Washington State Apple Advertising Comm'n (1977) pp. 496-99
Discrimination Regarding Trash Disposal Jamar Ch. 11 pp. 499-502
City of Philadelphia v. New Jersey (1978) pp. 499-502
Dormant Commerce Clause and the 21st Amendment 2020 Supp. §11.3.2.4bis pp. 24-34
Tennessee Wine and Spirits Retailers Ass'n v. Thomas (2019) 2020 Supp. pp. 24-34Discrimination – The Public Necessity Exception Jamar Ch. 11 pp. 502-05
Maine v. Taylor (1986) pp. 502-05
Dormant Commerce Clause–Excessive Burden Jamar Ch. 11 pp. 505-14
Pike v. Bruce Church, Inc. (1970) pp. 506-07
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) pp. 507-09
Government Performing Governmental Functions That Affect Interstate Commerce Jamar Ch. 11 pp. 509-14
United Haulers Association, Inc., v. Oneida-Herkimer Solid Waste Management Authority (2007) pp. 509-14
Dormant Commerce Clause Limitations and Exceptions Jamar Ch. 11 pp. 514-523
State as a Market Participant pp. 514
Reeves, Inc. v. Stake (1980) pp. 515-18
Limitations on the State as Market Participant Exception pp. 518-20
The Federal Approval Exception pp. 520-23
Privileges and Immunities Jamar Ch. 11 pp. 527-35Western & Southern Life Insurance Co. v. State Board of Equalization of California (1981) pp. 520-21
Dormant Commerce Clause–Special Cases Jamar Ch. 11 pp. 523-527; Jamar 2020 Supp. pp. 34-41
State Support of In-state Commerce pp. 523-24
State Taxation pp. 524-25; Jamar 2020 Supp. pp. 34-41
South Dakota v. Wayfair, Inc. (2018) Jamar 2020 Supp. pp. 34-41
Licenses p. 525
Baldwin v. Fish and Game Commission of Montana (1978) pp. 529-33
The Privileges and Immunities Clause and Fundamental Rights pp. 533-35
Full Faith and Credit Jamar Ch. 11 pp. 535-36
Note on the Incorporation Doctrine and Rights as Limits on States Jamar Ch. 11 State Power and Federal Constitutional Limits on It p. 536
Federalism and State Sovereignty Jamar Ch. 12 Federalism & Sovereignty: The 10th and 11th Amendments pp. 539-99; Jamar 2020 Supp. pp. 41-45
Introduction to Federalism and Sovereignty Jamar Ch. 12 Federalism & State Sovereignty pp. 539-42
The Anti-Commandeering Limit on Federal Power to Regulate States Jamar Ch. 12 pp. 542-71
Garcia v. San Antonio Metropolitan Transit Authority (1985) pp. 544-51
After Garcia (1985) pp. 551-52
The Anti-Commandeering Doctrine: State Legislation and Regulation Jamar Ch. 12 pp. 552-61; Jamar 2020 Supp. pp. 41-45New York v. United States (1992) pp. 553-61
Murphy v. NCAA (2018) Jamar 2020 Supp. pp. 42-45The Anti-Commandeering Doctrine: State Enforcement of Federal Law Jamar Ch. 12 pp. 561-67
Printz v. United States (1997) pp. 561-66
Anti-Commandeering Doctrine Limited: Direct Regulation of Commercial Activity of States Jamar Ch. 12 pp. 567-69Contextual Note after Printz (1997) pp. 566-67
Federalism in the Context of Anti-Commandeering Versus Direct Regulation of Commercial Actions by a State Jamar Ch. 12 pp. 569-70Reno v. Condon (2000) pp. 568-69
Introduction to the 11th Amendment and State Sovereign Immunity Jamar Ch. 12 Federalism & State Sovereignty p. 572
State Sovereign Immunity and Federal Regulation Jamar Ch. 12 pp. 572-73
State Sovereign Immunity Reborn p. 573
Seminole Tribe of Florida v. Florida (1996) pp. 573-82Developments After Seminole Tribe (1995) Jamar Ch. 12 pp. 582-86
Alden v. Maine (1999) (note) p. 583
Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999) (note) p. 583
Central Virginia Community College v. Katz (2006) (note) p. 584
Board of Trustees of the University of Alabama v. Garrett (2001) (note) p. 584
Tennessee v. Lane (2004) (note) p. 585
Nevada Dept. of Human Resources v. Hibbs (2003) (note) p. 585
Introduction to the Ex Parte Young (1908) Doctrine Jamar Ch. 12 pp. 586-99
Excerpt from Lewis Carroll’s Through the Looking Glass (1872) Jamar Ch. 12 pp. 586-87
The Ex parte Young (1908) Doctrine Jamar Ch. 12 pp. 587-96
Pennhurst State School & Hospital v. Halderman (1984) pp. 588-96
Pennhurst (1984) in Context Jamar Ch. 12 pp. 596-97A Proposed Amendment on State Sovereign Immunity Jamar Ch. 12 pp. 598-99
HU and HUSL Policies
Seriousness of Academic Purpose: To achieve its educational purposes, HUSL must maintain an environment conducive to learning and to scholarly endeavors of both faculty and students. Seriousness of academic purpose requires students to prepare daily, to do assignments in a timely fashion, to attend class regularly, to be punctual, and to participate in class in meaningful way.