Constitutional Law:

Structure and Processes

POL 400, TuTh 10:50-12:05, LH-04
Prof: Dr. Jim L. Riley  Regis University
Spring, 2010

Office Hours
 Monday & Wednesday:   10:30 - 2:00
Tuesday &Thursday:  3:00 -4:00
Friday:  By Appointment  
Office: Carroll Hall 215
 Office Phone: (303) 458-4974
web page --

TEXT:    Constitutional Law for a Changing America:   Institutional Powers and Constraints, 6th edition, Epstein and Walker

The first sentence in the Regis Mission Statement reads:  "Regis University educates men and women of all ages to take leadership roles and to make a positive impact in a changing society."  Understanding the nature of politics in its broadest sense is crucial to this goal.  This course seeks to expand the political knowledge of students such that each of them is better able to become capable and responsible leaders in our society that is so deeply penetrated by things political.

U.S. Supreme Court Building


Members of the U.S. Supreme Court       

John Roberts, Chief Justice (2005)

        John Paul Stevens (1975)

        Antonin Scalia (1986)

        Anthony Kennedy (1988)

        Clarence Thomas (1991)

        Ruth Bader Ginsburg (1993)

        Stephen G. Breyer (1994)         

        Samuel Alito, Jr. (2006)

Sonia Sotomayor (2009)

1. Use and Significance of the Syllabus: This syllabus is a most important guide for you in understanding what it is this course is designed to accomplish and how it is organized to achieve its stated goals. Moreover, specific ground rules, obligations, and responsibilities are described below. By a careful reading, you should obtain a clear idea of what we will be doing in this class throughout the semester.

It is not intended that this syllabus constitute a rigid and inflexible straitjacket binding us to a predetermined schedule, but rather that it serve as a series of guideposts enabling us to maintain some clear focus on the subject at hand. The dates and deadlines contained below will be adhered to, barring unforeseen exigencies requiring modification. Daily assignments will not be given in class. There is included at the end of this syllabus the complete semester's assignments. It is your responsibility to familiarize yourself with each day's assignment and to complete it prior to classtime.

2. Course Objective: It is the objective of this course to impart within its participants knowledge of, interest in, and an appreciation for the U.S. Constitution as it relates to U.S governmental institutions, their powers and interrelationships. More specifically, students should, at semester's end, be sufficiently familiar with constitutional principles and development to be able to write with accuracy and completeness on these topics pertaining to the U.S. Constitution.

Stress needs to be given to the fact that although this course will utilize the case method to examine constitutional principles, it is the Constitution that constitutes the central point of concern. Cases are a means to an end, not an end in and of themselves.

3. Use of Text: Students are expected to have read and briefed the cases prior to class time. This is an essential element to the course inasmuch as class discussion of the reading material constitute a most important aspect of the entire course. It is vital that students familiarize themselves with the assignments in order to plan study regimens carefully. The table of cases at the end of the text will permit easy location of the assigned cases. Moreover, the table of contents of the text will also prove most valuable in locating assigned material.

There is valuable reading accompanying the opinions of the Justices.  You are expected to read this ancillary material in conjunction with each assigned case.

4. Briefing of Cases: The case briefing method will be explained in detail in class. It is to be assumed that students will study these cases in sufficient depth so as to be able to respond accurately and completely to examination questions on that case and its significance to the U.S. Constitution. Students are expected to brief all cases on the syllabus.   Most of the cases to be briefed may be found in the assigned text book.  Those with an asterisk (*) are not in the text and need to be briefed from another source (such as the linked web site in the name of the case).  No student can have any realistic hope of completing this course in a successful manner absent fulfillment of this case briefing requirement.

5. Course Format: This course will utilize the lecture/ discussion format during the first few weeks of the semester. Following this period, an emphasis will be given to developing a hybrid format involving both lecture/discussion and the so-called "Socratic" method. This latter approach is one in which I will initiate questions designed to explore topics, cases (facts, decisions and rationale') to be covered in that day's class. As will be explained below, student performance during these verbal exchanges may constitute an important part of the final grade determination.

6. Examinations: There will be two (2) examinations during the semester and a final examination at the end. The examinations will each count for 20% of the course grade. Twenty percent will come from each of the the out-of-class projects outlined below.

It is the policy of this class to permit no make-up examinations. There are two exceptions to this policy: (1) instances where a particular student has a verified medical excuse; and (2) instances in which a particular student submits to me within one week of the regularly scheduled examination a request for a make-up examination. Students missing a regularly scheduled examination and not meeting either of the exceptions will receive a Fail for that examination.  A prior test will be made available.

It should be noted that the examinations (and out-of-class papers) will be graded blindly. Each student will be assigned a personal code that will be affixed to papers. This will eliminate any personal factors from the grading process.

7. Two Out of Class Assignments: Due Date -- April 6

A.    Each member of the class shall select one Supreme Court Justice whose constitutional jurisprudence will be explored, explained and critiqued.  Any member of the Court throughout its history may be selected (although some will be far more amenable to such inquiry than others).  The goal of this project is to discover the guiding principles underlying the chosen Justice's approach to constitutional interpretation.  It would be best (but not mandatory) to choose a Justice who has developed a clear approach to constitutional decision-making in the area of governmental institutions, powers and relationships.  This will enhance your understanding of the subjects explored in this class.

In Dayton Memorial Library there is placed on two hour reserve a reference book that may be useful in beginning your search for a Justice to examine.  The book is titled The Supreme Court Justices:  Illustrated Biographies, 1789-1995 (2nd edition).   Obviously those members of the Court who were appointed after publication are not included.  In addition there is on reserve:  (1)  A Court Divided, Mark Tushnet and (2) Storm Center:  The Supreme Court in American Politics, David O'Brien.  (NOTE:  These reference materials are under my name and under the course POL 496e - not POL 400)

This paper shall be no less than eight nor more than fifteen pages in length - double spaced.  No less than five sources shall be used in gathering information about the selected Justice.  On February 9 each student will submit to me the name of the Justice selected along with a one paragraph explanation as to why he/she was chosen.  I will then either approve the choice or suggest another.  This assignment will constitute 20% of your course grade.

B. There is on the Internet a site at which one may hear the oral arguments that were presented before the Supreme Court in selected cases.  Each student is assigned the task of listening to one oral argument in its entirety (about one hour) and providing a written report on this argument. The case selected must be on a topic covered in this class but not necessarily on a case covered in this class (although that would be desirable). The case chosen must be submitted to me for approval on February 9.

This report shall no less than eight or more than fifteen pages in length and include the following: (1) name of the case, (2) date of the oral argument, (3) name of the lawyers arguing the case, (4) a summary of the main points made in the oral argument by each attorney (include here important comments made by the Justices), (5) your views on what made the arguments effective or ineffective and  (6) a description of your impression of what you heard (i.e, what did you learn from hearing these arguments?). This assignment will also constitute 20% of your course grade.

These papers will be evaluated, critiqued and graded. Those students wishing to have to opportunity to submit a revised version of their paper(s) may do by submitting their assignment(s) initially on March 16. If a revised paper is then submitted on the April 6 due date the revised paper(s) will then be re-evaluated, critiqued and graded with this grade substituting for the one assigned for the original paper. This resubmission is an option and not a requirement but is available only to those who meet the March 16 deadline. Late papers will be heavily penalized as will papers with technical errors, superficial and/or careless summaries and analyses.  

8. Quality Requirement: As a general rule, technical errors (i.e., typographical mistakes, misspellings, sloppy erasures, sentence fragments, etc.) totaling in number an amount greater than the number of pages in the body of the paper, will result in heavy grade penalty. Moreover, papers that deviate significantly from proper form will likewise be graded down. Proper form may be gleaned from Turabian's A MANUAL FOR WRITERS OF TERM PAPERS or other acceptable guide.

This quality-control device has been instituted in an effort to impart within Regis students a habit of paying close attention to correct form and procedural quality. Substance of information, while vitally important in its own right, may be seriously impaired if presented in a manner that renders the communication process clouded. Clarity of message is vital to such communication. More simply, what one says is important, but saying it clearly is also critical.

9. Student-Professor Conferences: You are invited and encouraged to meet with me at any time that is mutually convenient. My office hours are given above. If these times are not convenient to you, we can easily arrange some other time. Please do not adopt the view that conferences are only for addressing problems. I will be most pleased to chat with you about matters of common interest. Certainly, we should discuss any perceived difficulties you may be having in the course.

While I will normally be available and in my office during scheduled hours, there may be occasions when exigencies arise requiring me to be elsewhere. Therefore, letting me know in advance that you wish to meet will make certain my being in my office.

10. Grading Policy: I shall make every effort to adhere faithfully to the grading standards set forth in the Regis University Bulletin while relying upon my professional judgment to make the necessary applications of these standards. Grades will be determined by student performance, both in and out of class as set forth in the section on examinations. "Borderline" grades will be decided using class participation as the deciding factor.

At the end of the semester any student with a course GPA of  "B" or better may choose to accept that GPA and corresponding letter grade in lieu of taking the final examination.  Each grade received to that point will count for one-fourth of the course grade.   If this option is accepted the student will be required to prepare a 3 - 5 page thoughtful written evaluation of the class.  This evaluation will have no bearing on the grade in this class (or any other for that matter). 

11. In-Class Participation: Students who have consistently provided positive in-class verbal contributions will receive the benefit of any doubt when final grades are determined. Thus, "borderline" students (i.e., between A and B, or B and C) who have met this participation standard will be elevated to the next highest grade. Those who have not provided such positive in-class contributions will not receive such elevation. Past experience has shown that this will be a significant factor in about half of all instances.  It is particularly important that each student be prepared to discuss all of the assigned cases on a daily basis.

12. Class Attendance and Decorum Policy: Three unexcused absences are permitted without penalty. "Cuts" beyond this will result in the course grade being lowered by 0.2 points for each day missed beyond the allowable three "cuts". All absences are considered "cuts" unless explicitly excused.

Once roll is taken students entering the class late will be counted as absent for that day. This policy is instituted to discourage chronic tardiness which has become increasingly prevalent in recent semesters. Moreover, students are expected to remain in the class for the entire duration of the class.  If there is a need to leave prior to the end of the class period please  inform me of this need prior to the beginning of the class.

I also request that there be no eating in class and that students remove their hats while in class.   Bringing a soft drink or coffee to class is permissible although there is always the risk of a spill.

Power down all cell phones or other communication devices. 

13.  Computer Use in Class:  Any student wishing to use a computer in class needs to speak with me regarding this request.  It is required that in-class utilization of the computer will be limited exclusively to class related matters:  taking notes or accessing material related to subjects under scrutiny in class.  Use of the computer for communication purposes or accessing of material unrelated to the class is prohibited and may result in the loss of in-class computer access privileges.

14. Note Taking: In order to achieve a desirable grade in this class (presumably reflecting one's level of achievement), it is necessary to take "good" notes of three types: class notes, text notes, and research notes. Class notes should summarize material presented in class so that you may later recall what was put before you there. Ideally and desirably, these should be in the form of full and complete sentences, organized in outline form (major and minor headings being present).

Text notes should condense and summarize the material given to you by the author. For this class text notes should take the form of case briefs as discussed early in the semester. Research notes serve the purpose of recording that which you have gathered through your out-of-class digging. Generally, the purpose of notes is to store, organize, and make information more readily available so that it can eventually become knowledge. It is utilitarian in nature, that is to say, it is designed to serve some larger purpose.

If you find after a few meetings that your notes are not very accurate or helpful in organizing and understanding the material, meet with me at your first opportunity. One final point:   you should review notes taken at the previous meeting before going to class on any given day. This five or ten minute review will prove exceedingly valuable in various ways.

15.  Use Internet and E-Mail:   I will communicate by e-mail frequently with individual members of the class as well as the class as a whole.  To this end each member of the class needs to provide me with his or her e-mail addresses.  I will gather e-mail addresses in class.  It is expected that each member of the class will check his or her e-mail messages daily.

Because the Internet has become such a valuable tool for gathering information and enhancing communication, we will be making extensive use of this during the semester.  Periodically I will assign reading material to be gleaned from the "net."  These assignments will be given by e-mail.

16.  Academic Integrity:  It is expected that students will act honorably in all activities related to this course and will refrain from any form of academic and professional dishonesty or deception in the classroom, clinical, and other learning settings. These behaviors include cheating, plagiarism, falsification of data, falsification of records, and aiding and/or abetting dishonesty.

17.    Accommodation of DisabilitiesFor information regarding Regis disability services policies, visit the web site of the Office of Disability Services.

18.  Course Withdrawal Policy:  Students are expected to know and observe the published deadlines for (a) dropping the course and (b) withdrawing from the course. These deadlines are published on the University's Academic Calendar, which is available in the Bulletin, the course schedule and is in the Dean's Office.  THESE DEADLINES ARE NOT FLEXIBLE.

19.  Important Dates and Deadlines:

Semester Schedule

(Highlighted links are assigned reading in addition to text and cases.)

I. Course Mechanics and Case  Briefing  (1/19)

II.    The American Constitutional System  (1/21 & 1/26)  (pp. 1-62)

    A    Court Organization in the U.S. 

    B.  Constitutional Interpretation

        1.    Appellate Process

        2.    Constitutional Reasoning   

III.    Principles Controlling the Exercise of Judicial Review and Powers   (pp. 62-68)

   A..         Establishment of Judicial Review (1/28)

                Marbury v. Madison (1803) pp. 68-79) (an exercise)  (Sec. 13; Judiciary Act, 1789)

                Martin v. Hunter's Lessee (1816) (pp.79-89) (Sec. 25; Judiciary Act, 1789)

                Eakin v. Raub (1825) (pp. 89 - 94)

B.        Limits on Judicial Review (2/2)

               Ex parte McCardle (1869) (pp. 94-97)

               Baker v. Carr (1962) (pp. 105-111)

               Nixon v. U.S. ( 1993) (pp. 111-117) 

               Flast v. Cohen (1968) (pp. 117-125)              

III.  The Congress (2/4 & 2/9) (pp. 127-131)

               McCulloch v. Maryland (1819) (pp.153-155)

                McGrain v. Daugherty (1927) (pp. 164-169)

                Barenblatt v. U.S. (1959) (pp. 173-179)

               U.S. v. Curtiss-Wright Export Corp. (1936) (pp. 179-185)              

               U.S. Term Limits, Inc. v. Thornton (1995) (pp. 140-149)

IV.    Executive Powers   (2/11 & 2/16) (pp. 192-208)    

        A.  Execution of Laws & Executive Privilege

                In re Neagle (1890) (pp. 208-214)

                Clinton v. City of New York (1998) (pp. 215-222)                               

                U.S. v. Nixon (1974) (pp. 240-245)

                Mississippi v. Johnson (1867) (pp.245-247)                       

                Nixon v. Fitzgerald (1982) (pp. 247-252)

               Clinton v. Jones (1997) (pp. 252-259)

Examination #1 (2/18)

        B.    War and Emergency Powers (2/23 & 2/25) (pp. 268-269)

                The Prize Cases (1863) (pp. 289-294) (prerogative theory of presidential power)

                 Ex parte Milligan (1819) (pp. 294-301) (martial law)

                Korematsu v. U.S. (1944) (pp. 307-311)

                Youngstown Sheet and Tube Co. v. Sawyer (1952)  (pp. 311-317) ("stewardship theory" of presidency"literalist" view of presidency)

               Dames and Moore v. Regan (1981) (pp. 317-322)

                Hamdan v. Rumsfeld (2006) pp. 329-336)

               Text of Joint Resolution on Iraq 

V.    The Federal System (3/2 & 3/4) (pp.344-346)

                McCulloch v. Maryland (1819) (pp. 346-354)

                Hammer v. Dagenhart (1918) (pp. 360-365) 

                U.S. v. Darby (1941) (pp. 365-367)

                Missouri v. Holland (1920)  (pp. 407-409)

                Garcia v. San Antonio Metro Transit (1985) (pp. 374-379)   (recommended reading:   Federalism Revitalized)

                Printz v. U.S. (1997) (pp. 383-390)

                Alden v. Maine (1999) (pp. 392-398)

VI.    Economic Regulation (3/16)

        A.     The Commerce Power (pp. 424-426)

                1.     Foundations

                        Gibbons v. Ogden (1824) (pp. 426-430)

                        U.S. v. E.C. Knight Co. (1895) (pp. 430-436)

                2.     Supreme Court and the New Deal (3/18)

                         Schecter Poultry Corp. v. U.S. (1935) (pp. 438-443)  (Franklin Roosevelt's Court Packing Plan)

                         Carter v. Carter Coal Co. (1936) (pp. 448-453)

                        N.L.R.B. v. Jones & Laughlin Steel Co. (1937) (pp. 453-461)

                        Helvering v. Davis (1937)

                3.     Post-New Deal Congressional Use of Commerce Power to Regulate (3/23)

                        U.S. v. Lopez (1995) (pp. 465-471)

                        U.S. v. Morrison (2000) (pp. 471-476)        

Examination #2 (3/25)

                 4.    The "Negative" Dimension of the Commerce Clause (3/30) (pp. 489-492)

                         Cooley v. Board of Port Wardens (1852) (pp.492-496)

                         Southern Pacific Rail Road v. Arizona (1945) (pp.496-499)

                        Hunt v. Advertising Commission (1977) (pp. 499-504)

                        Maine v. Taylor (1986) (pp. 504-506)

                        Oregon Waste Systems. Inc. v. Dept. of Environmental Quality (1994) (pp. 558-562)

           B..     Congressional Regulation by Taxation and Spending (4/1 & 4/6)) (pp. 510-515)

                       McCray v. U.S. (1904) (pp. 529-533)

                      Bailey v. Drexel Furniture Co. (1922) (pp. 533-537)

                       U.S. v. Butler (1936) (pp. 537-542)               

                       Steward Machine Co. v. Davis (1937) (pp. 542-546)

                       South Dakota v. Dole (1987) (546-549)

 VII.        Economic Freedom  (pp. 565-568)

        A.    The Contract Clause (4/8 & 4/13) (pp. 568-570)

                Dartmouth College v. Woodward (1819) (pp. 575-580)

                Charles River Bridge v. Warren Bridge (1937) (pp. 580-586)

                Home Building and Loan Association v. Blaisdell (1934) (pp. 589-593)

                Allied Structural Steel Corporation v. Spannaus (1978) (pp. 597-600)

        B.     Economic Substantive Due Process (4/15 & 4/20))

               The Slaughter House Cases (1873) (pp. 605-611)

                Munn v. Illinois (1872) (pp. 611-617)

                Lochner v. N.Y. (1905) (pp. 619-626)

                Muller v. Oregon (1908) (pp. 626-632)

                Adkins v. Children's Hospital  (1923) (pp. 632-636)

               West Coast Hotel v. Parrish (1937) (pp. 640- 644)

         C.    The Taking's Clause (4/20 & 4/27) (pp. 652-655)

                U.S. v. Causby (1946) (pp. 655-657)

                Nollan v. California Coastal Commission (1987) (pp. 662-667)

               Hawaii v. Midkiff (1984) (pp. 674-677)                

                Kelo v. City of New London (2005) pp. 677-684)

VIII.    Course Wrap (4/29)

EXAMINATION #3 - May 6, Thursday, 8:00-10:00 a.m.