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PSC 314: Political Theory & Constitutional Law TimeTable

Prof. Jeremy Lewis, Revised 23 Jan. 2017 with reporters.
No classes, Spring 2017: M 16 Jan., F 27 Jan., F 17 & 24 Feb., F 3 Mar., 27-31 Mar., F 14 Apr..
Findlaw: Supreme Court Case Code Search -- by Party involved, or by Code
You may find the case briefs on or Wikipedia to be helpful
Week: [01] [02] [03] [04] [Test1] [05] [06] [07] [08] [09] [Test2] [Spring Break] [10] [11] [12] [ePaper] [13] [14] [Final]

Week 1

introduction to the course 
Lecture: introduction to legal concepts; hierarchy, writs, plain language v cong. intent, cons v libs, activism v restraint.
Constitution online at Cornell Law School, Index | Amendments (Bill of Rights)
Article I: Legislature | Article II: Presidency | Article III: Judiciary | Annotated version
Article IV: States | Article V: Amendment Process | Article VI: Legal Status of Constitution |
McCloskey, 1: The Genesis & Nature of Judicial Power | Lecture
- To what degree did the Constitution establish the Court system?
- What role did the Founders intend the Court to play in the separation of powers?
- How did the Court establish its own power?
Week 2
McCloskey, 2: The Establishment of the Right to Decide: 1789-1810 | Lecture
- How could the court establish judicial independence, review and sovereignty?

McCloskey: 3: The Marshall Court and The Shaping of The Nation: 1810-1835 | Lecture [Local PPT]
- What early statutes and cases helped establish the authority of the Court?
- How did the chief justice work to build the Court's authority?
- How did the Court build up federal power over the states?
- Which clauses of the constitution gave the Court authority over the states -- and over regulation of business?

Nivola (ed), 36: Hamilton, Federalist 78 [Martin]
Brutus, Anti-Federalist article notes[Clark]
- Is the judiciary an excessively powerful and undemocratic branch -- or really a weaker branch?
- From what does the judiciary derive its authority?
- Is the power of judicial review derived from the fundamental law; from the People; or from the early peace and prosperity?

Lecture: Briefing a Case
Lecture, Brief of Chisholm v. Georgia (1793) [Local PPT]
Lecture, Brief of Marbury v. Madison (1803 [Local PPT])

Nivola (ed), 39: Marbury v Madison, (1803)
- Does the Supreme Court have the authority to review statutes for constitutionality?
- Does the Supreme Court have the power to order the executive to take an action?

Week 3
McCloskey, 4: The Court Under Taney: The Natural History of Judicial Prestige | Lecture on Taney [Local PPT]
Did Taney set out to overturn Marshall's rulings?
Did the Court restore states' rights over the federal government?
How did the Court tackle the thorny issue of slavery?
Sample cases:
You may find the case briefs on or Wikipedia to be helpful
Dred Scott v Sandford (1854)[Dixon??]
Did a slave in 1854 have a right to sue for his freedom?
Did it matter where the slave had lived and travelled?
What does it mean to be a citizen, and to have legal standing?
Nivola (ed), 35: Corwin, Higher Law in Amer Const Law [Reporter??]
What should be the role of the judiciary in a democracy?

McCloskey, 5: Constitutional Evolution in The Gilded Age: 1865-1900 | Lecture
- How did the Court shape economic relationships in the Gilded Age?
Slaughter House Cases [Local PPT
Gibbons v. Ogden (Steamboat monopoly cases) [Brief] [Harding, K]
- By what doctrine can the federal government intervene in state regulation of trade?

Plessy v Ferguson 163 U.S. 537 (1896) [Notes] [Baumgartner??]
- Did the commerce clause permit the Court to review regulation of trade?
- Were racially separated railroad cars constitutional in 1896?
- If segregated accommodations were constitutional, under what conditions?

Week 4
McCloskey, 6: The Judiciary and The Regulatory State: 1900-1937 [Up to Court packing plan, 1935]
- Would the Court accept an increase in federal domestic programs in 1936?
- By what constitutional clause or amendment does the US government have authority to regulate business?
- Would the Court strike down federal programs to regulate business?

McCloskey, 7: The Modern Court & Postwar America: 1937-1959
- Would the Court uphold federal treaties and foreign policy?
- Does the government have a right to forcibly intern civilians in wartime?

Sample cases on presidential powers in wartime:
You may find the case briefs on or Wikipedia to be helpful
Nivola (ed), 42: Korematsu v US [Notes]  (1944)[Local PPT] [Reporter]
Is it constitutional, under presidential authority in time of war, to force citizens out of their property and into camps?
- If conflicting executive orders require citizens both to stay indoors (under curfew) and to leave their property, can they be punished [Hirabayashi v US, the preceding case]?

United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)[Reporter] ]
- Under what authority does the president sign executive orders that ban arms sales to foreign countries: inherent powers, enumerated powers, or statutorily delegated powers?
- Are the President's powers in national security policy "plenary"?

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) [Brief] [Reporter] 
- Is it constitutional, under presidential authority in time of war, to order striking steel workers back to work?
- If so, is that authority inherent to the Presidency, granted under the C-in-C role, or delegated by statute?
- Can the president use such powers without exhausting his lesser powers under the Taft-Hartley Act to require a cooling-off period (temporary return to work) during an industrial strike?

US v. Reynolds (1957)
- After an aircraft has crashed on a secret mission, are the widows of testing engineers entitled to find out the unclassified portions of circumstances of their husbands deaths?
- Does the executive authority over national security -- even in peacetime, during the cold war -- extend to determining what documents are kept classified?
- Under what authority (delegated, enumerated or inherent) does this fall?

Classroom and study group scenes excerpted from the film, "The Paper Chase" - (Harvard Law School, fiction, 1973 -- if available) First classroom interrogation scene, Youtube, 3'| Climactic classroom interrogation scene, 2'| Film notes on Wikipedia.
- How does the Socratic method proceed?  How does it contrast with the critical legal studies method?
- How does it differ from the political science approach generally?
- Should the political circumstances and policy consequences of a case be analyzed in a law school?

Week 5
McCloskey, 8: Civil Liberties, Civil Rights, & the Supreme Court ...
- Does a freed slave have the rights of a citizen?
- Can society forcibly separate the races in public accommodations and transport?
- What rights should an accused person have under interrogation or in court?
- What does "due process of law" mean, anyway?
- Do congressional districts have to be the same size to ensure "one man, one vote"?
- Is there a right of privacy -- even if it conflicts with a right to life?

Adam Liptak, "Is a Judge a Politician?" (NY Times /YouTube, 2', 21 Jan. 2015)
See also on Gdrive: a collection of NY Times articles about Judge Roy Moore and the gay marriages issue in Alabama, Feb. 2015

See Dates page for Test 1, which may include multiple choice, short answer and essay questions on all the above.
For Presidential State of the Union message: check Dates page.

Lecture on the background of the First Amendment [PPT]
Sample cases:
You may find the case briefs on or Wikipedia to be helpful

Sweatt v. Painter, 339 U.S. 629 (1950) [Brief] [Reporter]
Nivola (ed): 40: Brown v Board [Notes],  347 U.S. 483; 74 S. Ct. 686 (1954) [Case] [Reporter]
Bolling v. Sharpe, 347 U.S. 497 (1954) [Brief] [Reporter]
Brown v. Board II, 349 U.S. 294 (1955) [Brief] [Reporter]
Map of educational separation in the US before Brown, (from Wikipedia, reliability unknown)
- Does equal protection of the laws imply desegregated schooling?
- How must desegregation be implemented?
- What does "deliberate" mean in legal terms?
Week 6
McCloskey, 8: continued ... and rights of criminal defendants, pp. 161-165 in 8e
Legal glossary of terms used in class| definitions by student [scanty]

Review of sample civil rights cases of the Warren court:
You may find the case briefs on or (selectively) Wikipedia to be helpful
-- if discussed in class, may included on Test 2; check with instructor

Rights to voting:
Baker v. Carr, 369 U.S. 186 (1962, Tennessee) [Brief needed] [Reporter]
Reynolds v. Sims, (1964, Alabama) [Brief needed] [Reporter]
Hypothetical, Equal State Districts Map, 2013
- What does "one man, one vote" mean about the the average size of electorate in a district?
- Should a court intervene in political questions?

Free speech, free press, libel and the first amendment:
New York Times v Sullivan (1964, Alabama) 

Rights of criminal suspects and defendants:
Mapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961) [Brief] [Findlaw] [Reporter]
- Can a piece of evidence, obtained illegally, be used in court?
- Under what conditions executing a warrant are police entitled to search more broadly?

Gideon v. Wainwright 372 U.S. 335 (1963, Florida) [Brief] [Findlaw] [Reporter]
short video, on Gideon and Miranda (if time permits)
Film, "Gideon's Trumpet" (with Henry Fonda, made for TV, if available)
- Can a poor man defend himself effectively without a free lawyer?
- In non-capital cases, must the state provide legal counsel for an indigent defendant?

Miranda v. Arizona 384 U.S. 436 (1966) [Brief] [Findlaw] [Local PPT] [Reporter]
- Must a defendant be warned about his rights?
- Is a defendant entitled to legal counsel even before trial, under interrogation?
- Is a signed confession admissable in court if the defendant lacked legal counsel during interrogation?

Additional case briefs on rights related to sodomy:
Bowers v. Hardwick 478 U.S. 186 (1986, Georgia) [Brief] [Findlaw] [Reporter]
Lawrence v. Texas 539 U.S. 558 (1993) [Brief] [Findlaw] [Casebriefs (not a good one)] [Reporter]
- Does an adult have a right to privacy in his bedroom?
- Can the police, when entering on a warrant for one alleged crime, arrest a citizen for another?
- Can a state legislate a ban on specific ways of making love in private?
- Does the Supreme Court ever reverse itself within a few years?
- Can states legislate against any personal behavior regardless of federal doctine?

When feasible: Test 1 returned, with exemplary written answers presented
Week 7
McCloskey, 9: Judicial Monitoring of Welfare State
Plyler v. Doe, 457 U.S. 202 (1982) [Brief is now PPT] [Reporter]
- Do children of undocumented aliens have a right to public education?
- Does a state have legal or geographical jurisdiction over undocumented children?
- Does a state have a substantial interest in their education -- or in denying them education?
- (Does it matter for constitutional rights whether uneducated aliens would in future turn to crime?)
Completion of film, The Paper Chase, followed by discussion.
- Does the film depict a method that constructs students ability in legal reasoning -- or does it undercut their abilities as lawyers?
- Does the film depict law students as learning anti-social behavior traits?

CNN TV coverage, Sen. Sessions in US Senate hearings, questions supreme court nominee Elena Kagan about her work as Dean of Harvard law school (and military recruiting on campus issue).

The following documentary videos may logically fit here, but may be shown when time permits, in later weeks:
PBS video, "What Jennifer Saw" - (eyewitness testimony)
- If an eyewitness is intelligent and conscientious, what could go wrong with identification of a perpetrator?
- What is the reliability of circumstantial evidence compared to eyewitness testimony?
- What is the role of the detective work in a violent crime?
- How long should evidence be retained?
- How does DNA research change courtroom outcomes?
- What is the probability of correct convictions?

Outline of President Obama's Address to Congress, 24 Feb. 2009 (includes a confrontation over the Citizens United case) & see YouTube
Week 8
O'Brien, 1: A Struggle for Power
- What does the abortion issue tell us about the roles of the Court and Congress in policy?
- To what degree did constitutional language control the possible holdings in Roe v Wade
- What was the effect of rearguing Roe v Wade, and why did it happen?
- Does this chapter indicate that the Surpeme Court is a neutral arbiter of constitutional language, rather than another political body making policy?
- Where is a right to privacy found, and why does it apply to abortion rather than just to personal information?

O'Brien, 2: The Cult of the Robe
- How are judges selected, nominated and appointed?
- What is a merit system of appointment and promotion?
- Is it legitimate to nominate justices for their political persuasions?
- Is it proper to select justices for adherence to specific policies or a political party?
- Does it matter if the court is a microcosm of a diverse society?
- Should a President be able to pack the court with like-minded justices?
- In practice, are Presidents satisfied with the loyalty of their appointees?
- What guarantees judicial independence?

Sample cases on issues of reproductive rights:
You may find the case briefs on (or even Wikipedia) if careful,  to be helpful

Griswold v. Connecticut, 381 U.S. 479 (1965) [Brief] [Reporter]
Nivola (ed): 41: Roe v. Wade (1973) [Brief] [Reporter]
Additional case briefs on abortion issues:
Webster v. Reproductive Health Services, 492 U.S. 490 (1989) [Brief] [Findlaw] [Audio at Oyez] [Reporter]
Rust v. Sullivan, 500 U.S. 173 (1991) [Brief] [Audio at Oyez] [Reporter]
Planned Parenthood v. Casey, 505 U.S. 833 (1992) [Brief] [Findlaw] [Audio at Oyez] [Reporter]
- Can the state ban a married couple from using contraceptives?
- Can a state legislate a ban on abortions, and if so, under what conditions?
- Does a woman have a right to privacy in her own body?  If so, under what constitutional doctrine?
- Does a foetus have any constitutional rights, and if so, under what doctrine?
- Can a state require onerous conditions before a mother terminates her pregnancy?
- Can the State ban doctors from discussing contraception or abortion options?
- Are there any rights that have unlimited application?
Additional case briefs on affirmative action:
You may find the case briefs on or Wikipedia to be helpful
U. California Regents v. Bakke 438 U.S. 265 (1978) (Medical School) [Brief] [Findlaw] [Audio at Oyez] [Reporter]
Gratz v. Bollinger. 539 U.S. 244.  No. 02-516. (2003) (U. Michigan undergraduates)[Brief] [Findlaw] [Audio at Oyez] [Reporter]
Grutter v. Bollinger. 539 U.S. 306. No. 02-516. (2003) (U. Michigan law school) [Brief] [Findlaw] [audio at Oyez][Reporter]
Center for Individual Rights USA, "Ending racial double standards: CIR's lawsuits against the University of Michigan  [Reporter]
- Can scholarships be set aside for minority students? By what doctrine?
- Can a university give either a reserved quota, OR points in admission, to minority students? By what doctrine?
- If a university gives many points in admission to minority students, does that make it a quota system?
President Obama, address on the 50th anniversary of the civil rights march at Selma, (White House, 2015, 32')
President Obama's address, alternative recording, (YouTube, 2015, 31')
Vox, "The three most important parts of Obama's emotional speech at Selma," (YouTube, 2015, 10')
- With what rhetoric did Obama celebrate the 50th anniversary of the bridge crossing at Selma?
- To what degree did he celebrate success?
- To what degree did he call for further progress?

The following documentary videos may logically fit here, but may be shown when time permits, in later weeks:
PBS video, "What Jennifer Saw
- In what circumstances can eyewitness testimony be trusted, and when can it be mistaken?

PBS video, "Mr. Justice Brennan" (profile of the justice)
- How far did Justice Brennan influence public policy in the second half of the twentieth century?
- To what degree did Brennan draw upon constitutional princpiles rather than his own policy beliefs in writing or shaping court opinions?

Week 9
O'Brien, 3: Life in the Marble Temple |Lecture
- How was the Court organized in the C19th?
- When did the Court acquire its own building?
- When did the Court set up a bureaucracy to assist it?
- How does the Court function?
- Does the Court have enough bureaucracy to keep it running properly?
- What is the role of the Court's officers?
- When did the Court begin releasing opinions online?
- Does transparency help or hurt the Court?

O'Brien, 4: Deciding What to Decide
- How does the Court decide whether to hear a case?
- How many justicies are needed to agree to consider a case?
- How many cases are taken up by the Court?
- How can an individual petition the Court for redress?
- What characteristics make a case justiciable?
- What is the role of the Chief Justice?
- What questions should the Court NOT consider?
- How does the Court manage its case load?

Jan Crawford Greenburg, Stallworth Lecture at HC, Fall 2008, on book Supreme Conflict, notes [Reporter]
- How successful was the religious right and the G.W. Bush administration, in securing conservative appointments to (or "stacking" to their detractors) the Court?
- How does the appointment process work?
- Should political views (or constitutional doctrines) be a factor in appointment to the Court?

Nivola (ed), 37: Murphy, "Marshalling the Court"[Reporter]
- How can a justice seek power over opinions on the Court?
- What is role of legal argument and reasoning?
- What is the role of political skills and personal charm?
- How can a justice construct a majority coalition?

See Dates page for Test 2, which may include multiple choice, short answer and essay questions on all since Test 1.

Spring Break
Materials from Prof. Bradley Best, expert on judicial politics, Supreme Court Research Help
Week 10
When feasible: Test 2 returned, with exemplary written answers presented
Explanation of research project: see Dates page and Requirements page

O'Brien, 5: Deciding Cases & Writing Opinions[Reporter]
- Do oral arguments still have a role to play?
- Is decision more an individual justice's choice or a collective choice?
- Who gets to write the Court's opinion(s)?

O'Brien, 6: The Court & American Life[Reporter]
- How can the Court enforce its opinions?
- How does the Court communicate with the public?
- Does the Court follow public opinion?
- How does the Congress react to Court opinions?
- How does the presidency respond to Court opinions?

Nivola (ed), 38: Shapiro, "Presidency & Federal Courts"[Reporter]
- What are the political strengths and weaknesses of the Court?
- What is the balance between judicial activism and restraint on the Court?

Satire, from television

Last Week Tonight with John Oliver, Supreme Court, HBO, 19 Oct. 2014, Youtube, 6'
Judicial campaign ads, if time permits
Worst judicial campaign ads, 2000-08, FairCourtsPage, Youtube, 3'
Last week tonight with John Oliver, Elected Judges, HBO, Youtube, 23 Deb. 2015, 13' (examples include Roy Moore in AL)
- Brief video, APTV, Campaign '00: Roy Moore versus Sharon Yates (if time permits)
Week 11
Training for research project, with references and audiovisual presentation; see Dates page & Requirements page
Explore Curtis's index, and enjoy both the editor's introductions and the excerpted readings.
From Curtis v.1, section I: The Ancient Greeks
Plato, The Republic, from the Socrates-Adeimantus dialogue [Dr. Lewis]
- What is the role of Justice in a State?
- What is the purpose of the State?
- How are social classes to be treated by the State?
- What are the three waves of reform?
- How should people be persuaded to accept philosophers as guardians?
- What is the Noble Lie -- and how can a Lie be Noble?

Satire: Monty Python, the football match between Greek and German philosophers (BBC, 1970s, via Youtube, 4')
PBS video, "Mr. Justice Brennan" (profile of the justice who influenced public policy in the second half of the twentieth century)

From Curtis v.1, section I: The Ancient Greeks
Aristotle, The Politics [notes still needed][Reporter]
- How should a constitutional republic be constructed? [Aristotle]
- Who should rule over a family? [Aristotle]
- Is is right to own slaves? [Aristotle]
- What are the three branches of government for? [Aristotle]

From Curtis v.1, section V: Mediaeval Life and Thought
St. Thomas Aquinas, life pp.177-8,; and Summa Theologica, works pp.196-210[Reporter]
- Is government the result of sin -- or of man's social nature? [Aquinas]
- What is the relationship between social laws and the Natural Law? [Aquinas]
- Can we separate the two realms (or cities) of Man and God?

From Curtis v.1, section VII: The Renaissance
Niccolo Machiavelli, life pp.215-217; works pp.219-229[Reporters]
- How does Machiavelli's thought differ between the Prince and the Discourses?
- Does Machiavelli argue for a Prince or a Republic?
- Is it better for a ruler to be feared -- or loved?
- If a ruler must do damage to his subjects -- when should he do it?
- Is the Prince immoral -- or amoral?
- If a Prince should restrain himself out of prudence, is that also moral advice?
- Is Machiavelli writing about a state founded on religion -- or a secular state?
- What is Machiavelli's notion of virtue -- or Virtu?

Research Design: bring your design to class.

Explain the nature of the problem or issue to be explored; the approach you will take to investigating it and the nature of your coverage (periods, states, institutions, elections, parties, countries, presidencies); and what differences, causes or consequences you expect to find. Provide a list of the main sources you find useful.
Research Design: simple template PPT [Reporters]
Week 12
Explanation of the course rotation and courses offered for next term; and interviews with academic adviser for pre-registration advising.

Liberal versus communitarian Justice: a Discussion [Reporter]

From Curtis v.1, section VIII: Vico & Hume
David Hume, life pp.391-92; and works pp.397-411[Reporter]

From Curtis, V.1, section XI: Hobbes and Spinoza
Baruch Spinoza, life pp.328-9; and works pp.350-356 [Reporter]
[You should have read Hobbes, Locke and Paine in American or British government classes; if not, enjoy here.]

From Curtis v.2, section 1: Rousseau, Condorcet and Kant
Immanuel Kant, life pp.17-18; and works pp.40-47  [Reporter]
[You should have read Rousseau and the socialists in Comparative government classes; if not enjoy here.]

From Curtis v.2, section IV: Utilitarianism
Adam Smith, works pp.108-117 [Reporter]
- How does the division of labour improve the productivity of firms? [Adam Smith]
- What is the role of the guiding hand of God in the market? [Adam Smith]

Curtis v.2, section IX: Social Darwinism, History and Neo-Idealism
Herbert Spencer, life pp.254-5; and works pp.257-67 [Reporter]
- To improve the human breeding stock, should the poor be allowed to die off?
Walter Bagehot, life pp.255-6 and works pp.267-72 [notes still needed] [Reporter]
- What are the virtues of competition in the market?

Research project due: see Dates page and Requirements page

Week 13
[You should have read Jean-Jacques Rousseau in 302 or other classes; if not, enjoy here]

From Curtis v.2, section V: Early Socialism and Positivism [notes needed]
Pierre Joseph Proudhon, life p.131 and works pp.133-140[Reporter]
- Can people work together in equality within a community? [Socialists]
- Are there times when the needs of the community should override the needs of selfish indivuals? [Socialists]

From Curtis v.2, section VI: Marxism
Karl Marx, life pp.155-8; and works pp.158-80, [Reporter]
[Karl Marx bio from Lucid Café web]
- Is the capitalist system based on the exploitation of man by man?
- Will the capitalist system inevitably collapse, and why?
- Once a revolution is achieved, will the state wither away?

From Curtis v.2, section XII: Anarchism, Democratic Socialism and Marxism
Vladimir Illyich Ulyanov, known as Vladimir Lenin, life p.350; and works pp.362-373 [Reporter]
- If capitalism is bound to collapse, why is a revolutionary party necessary?
Lev Bronstein, known as Leon Trotsky, life p.350-1; and works, pp.373-9[Reporter]
- Do we need a permanent revolution?

Franz Kafka, The Trial (1925, film 1963). [Reporter]
Book notes on The Trial
Film notes on The Trial
What does Kafkaesque mean? A discussion

Illustrated presentations by students of their research projects, followed by interrogation and critical thinking discussion
Presentations timetable | Advice |
Examples from past seniors' capstone presentations (see Rainey, McCollum and Pierce for model PPT files)

Week 14
Illustrated presentations by students of their research projects, followed by interrogation and critical thinking discussion
Presentations timetable | Advice |
Examples from past seniors' capstone presentations (see Rainey, McCollum and Pierce for model PPT files)
Course evaluations
From Curtis v.2, section XIV: Sociology, Psychology and Pluralism
John Rawls, life p.426; and works pp.457-67 [outline from LAS Justice reading] [Reporter]
- Why would an individual choose to give up some freedom in return for government benefits?
- Under what conditions would a modern social contract be accepted?

From Curtis v.2, section IV: Utilitarianism:
Jeremy Bentham, life p.105-8; and works pp.117-120 [Reporter]
- How can "the greatest good for the greatest number" actually be applied to government services? [Utilitarians]
- Is it ethical to achieve happiness for the greatest number of individuals?
- Is societal happiness different from that of all individuals?
James Mill, life p.105-8; and works pp.120-4 [Reporter]
John Stuart Mill, life p.105-8; and works pp.125-9 [Reporter]
- Does quality of happiness matter, or only quantity?

See Dates page for Comprehensive Exam.

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