PG313: Constitutional Law

Politics and Government 313 ¾ U. S. Constitutional Law

Fall Semester 2004          Wild Bill



Objectives for This Course – Yours and Mine


My chief goal in Politics and Government 313 is education.  Education, one wag exclaimed, is what is left when you have forgotten the information.[1]  That is the kind of education regarding the United States Constitution and U. S. constitutional law that I hope that you and I can effect.[2]  That does not mean that I am indifferent to your accumulating information.  Rather, I believe that students and professors should integrate three intellectual steps:  Step 1 – learn details [acquisition of information];  Step 2 – assess, analyze, and synthesize acquired information into fair but critical representations [acquisition of sophistication];  and  Step 3 – test those representations against competing representations and perspectives [acquisition of education].  When you can describe, analyze, interpret, and argue about constitutional issues and processes, you will be able to teach yourself about constitutional law.  That is the education that I seek for and from you and me.[3]


In contrast to wide-ranging education, legal training forms no objective of this course.  This is a politics course, taught by a pol­i­ti­cal scientist, for students interested in the theory, practice, and significance of constitutional processes.  Politics and Government 313 will pre­pare you for law school [because it will make you a more sophisticated reader and thinker – as a course in poetry would!] but will not make you more attractive to law schools.  Most law schools discourage stu­dents from tak­ing un­der­graduate courses on the law.  Take my course only if you have genuine interest in the subject.


During the semester, you will learn about clear thinking, comprehensible expression, and cogent argumentation, but those are supposed to be objectives for any college course.  Only cretins and reaccreditation teams need reminding.[4]


Your Responsibilities and My Grading


Your grade for this course will be the weighted sum of four kinds of contributions to your learning.







Class Participation







Attendance, attention, preparation, contributions not covered below



Study Aids








Improved Case-Brief of Landmark Opinion(s)                            (5%)

Case-Brief of Landmark Oral Argument/Written Brief               (5%)

Hanau Chart                                                                                  (5%)

Historical/Evolutionary Hanau Chart                                           (5%)

Class Presentation                                                                         (5%)


Semester Paper




High Noon



Essay on Continuities/Changes in Selected Constitutional Doctrines


Final Examination




High Noon



Hanau Chart of Congressional Power under the Constitution

Class Participation:  You will be graded for your contributions to lively learning in the classroom.[5]  That means you must seem prepared, must seem engaged, and must seem to have something to contribute when you speak.[6]


Study Aids:  I have anticipated five sorts of study aids that will hone your skills at describing, analyzing, synthesizing, and theorizing.  By semester’s end, P&G 313 will have an impressive array of study aids that will inform generations of Puget Sound students and that may guide your efforts in the final examination.


First, you will rewrite one brief from Casenote Legal Briefs ¾ Constitutional Law, designed for the textbook and assigned for the course.[7]  Your purpose in rewriting will be to describe more accurately than did the lawyer who wrote the published brief what you found in the opinions.  This will not be as difficult as it may seem!  These briefs are designed for law students and law study.  You will find that students of Politics and Government find in constitutional quarrels other matters of interest to describe.[8]


Second, you will augment one brief from Casenote Legal Briefs ¾ Constitutional Law by incorporating your description of the major arguments advanced in oral arguments and in written briefs.[9]  I hope to induce you to see it as bizarre that case-briefs created by law students usually preserve so little of what advocates said and so much of what judges or justices said.[10]


Third, you will find a Hanau Chart that interests you, and you will make it better.  I shall make sample Hanau Charts available to you early in the course.  These charts sometimes describe cases more capaciously than do case-briefs.  Indeed, through analyses and syntheses Hanau Charts may describe whole subject-areas of law: interstate commerce, presidential power, judicial review, and so on.


Fourth, you will build on your skills at making Hanau Charts by noting the dynamics of constitutional processes of a subject-area of your own choosing.  You may take a Hanau Chart that you or a classmate created and make it dynamic by noting how different charts would be at various historical junctures [e.g., constitutional doctrines regarding racial equality in 1857, 1954-1955, and 2003 would significantly differ from one another].  This assignment should improve your ability to interpret arrays of cases in their contexts to formulate a broad perspective on constitutional evolution,[11] a perspective that you will recall long after you forget the facts of this or that landmark.


Fifth, you must orally present a landmark to classmates and me.  I’ll help you along,[12] but you must demonstrate your burgeoning acumen by preparing and by delivering.[13]  To prepare your recital, you will have to describe facts and arguments, to analyze contending arguments and resulting opinions, to interpret constitutional language to see how cogent adversaries and adjudicators have been, and to argue against alternative descriptions, analyses, and  interpretations of the landmarks.  In sum, you will demonstrate to the class and to me how you are acquiring each of the four arts that I mentioned on page one of this syllabus: description, analysis, synthesis, and interpretation.[14]


For each of these five tasks, you will show wisdom beyond your years and between your ears if you consult with me early and often.  I want you to learn to work smart.[15]  Learn how to prepare study aids efficiently but impressively!


Semester Paper:  Building on your efforts in some or all of the study aids, you will construct an essay of 10-20 pages[16] concerning continuities and changes in one or more constitutional doctrines of your own choosing.  For example, you could describe how “federalism” has changed over the centuries and how many features of federalism persist in 2004 in roughly the same form as they did in, say, 1789.  You could use Hanau Charts [yours or others’] to illustrate moments of major change.  You could analyze oral arguments or written briefs [or both] from very different eras to see to what degree they agree with each other more than disagree. 


Final Examination:  Your final examination will demonstrate your mastery of description, analysis, synthesis, and interpretation.  You will be assigned – individually or as part of a group, as you please – to prepare a Hanau Chart of some aspect of the constitutional authority of Congress.  Someone might cover “delegation of legislative powers.”  A group might research and represent “separation of powers.”  These charts you will have prepared and made available to classmates prior to the final examination [the deadlines will be announced].  At the final examination, each student will then assemble the partial Hanau Charts into a complete Hanau Chart on the powers of Congress.  I shall then assess your efforts based on accuracy, comprehensiveness, and clarity.


My Onerous Rules and Your Onerous Duties


1.  All submissions must be electronic, double-spaced, paginated, and care­fully documented in a consistent style[17] with margins at least one inch but less than two inches and, at the smallest, ten-point font.[18]  Submissions that fail of even one of these con­di­tions will be returned at a loss of one full grade [for example, an “A” would automatically become a “B”] for each time I must return them.  Emails and contributions to need not meet the above demands regarding margins, pagination, and font.


2.  All submissions are due at the time and on the date agreed.  In the case of the semester paper and the final examination, by taking the course you agree to submit by noon on 8 December and 17 December respectively.  For other responsibilities, you and I will explicitly set deadlines.  Any tardiness will gravely affect your grade for the submission or presentation.


3.  Papers with seri­ous errors of spelling, grammar, syntax, and/or usage appall me and should embarrass you.  I shall return papers with five or more errors in spelling, usage, syntax, and/or gram­mar ungraded, for re-sub­mission with the loss of a whole grade for insouci­ance [for example, a “C” would automatically become a “D”].  I want only your best work.  I shall count as a misspelling any nonstandard spelling that a spell-checker would have caught.  If, however, you can show that your spell-checker missed the misspelling or if you can find an English dictionary that permits the spelling you used, I shall not count the misspelling as an error.


4.  Identify your submissions only with your UPS Identification Number.  I want your name to ap­pear nowhere on your paper, including headers or footers.  This assures us that papers are being graded im­per­sonally.  I shall refuse to accept any paper that has your name or any other means of iden­ti­fica­tion.  No penalty attaches for submit­ting an identifiable paper, provided that you resubmit with­in 24 hours of receiving the rejected paper from me.


5.  After I hand back any submission on which I have written a grade, you must wait 24 hours before seeing me about it.  This allows you to read my com­ments, consider the issues carefully, and then make your most intellectual, least emo­tional presentation.  This rule pertains even if you do not want to challenge the grade.  Stu­­dents who read my comments could answer many of the questions that I am asked.  I read your papers;  please read my comments.


6.  You may team up with one or more classmates for each responsibility except class participation and the in-class part of the final.  I encourage you to work with others.


Our Protean Schedule


Aug 30   Organization of the Course & Opening Remarks


Sep 1      Rendering the Constitution:  A Perspectivist Account[19]


                BREST, LEVINSON, BALKIN, & AMAR[20] pp. 33-39

               Fallon, “A Constructivist Coherence Theory of Constitu­tional Interpretation”[21]


Sep 3      Apotheosizing the Supremes:  A Filiopietistic Film


                “Equal Justice Under Law”


Sep 8      Describing a Supreme Court Opinion:  The Classic Case-Brief[22]


                BREST, LEVINSON, BALKIN, & AMAR  pp. 7-60

                CASENOTES LEGAL BRIEFS  p. 2                                                                 McCulloch v. Maryland (1819)


Sep 10    Analyzing a Supreme Court Opinion:  A Toulmin Diagram


                BREST, LEVINSON, BALKIN, & AMAR  pp. 7-60

                Quarrels That Have Shaped the Constitution[23]  Ch. III                                   McCulloch v. Maryland (1819)


Sep 13    Characterizing the Marshall Court:  History, Longitude, & Path (In)Dependence


                BREST, LEVINSON, BALKIN, & AMAR pp. 71-75


Sep 15    Analyzing a Judicial Landmark:  Literalism and Legerdemain


                BREST, LEVINSON, BALKIN, & AMAR pp. 75-96

                CASENOTES LEGAL BRIEFS p. 6

                Quarrels That Have Shaped the Constitution Ch. I                                               Marbury v. Madison (1803)


Sep 17    Understanding Property Rights: The 1st Liberty Protected


                BREST, LEVINSON, BALKIN, & AMAR pp. 104-117                   Fletcher v. Peck (1810)    Presenter(s): 

                Quarrels That Have Shaped the Constitution Ch. II               Dartmouth v. Woodward (1819)  Presenter(s): 

                CASENOTES LEGAL BRIEFS p. 7

Sep 20    Fathoming Interstate Commerce: Reading Article One, Section 8 Expansively


                BREST, LEVINSON, BALKIN, & AMAR pp. 126-143

                CASENOTES LEGAL BRIEFS p. 8                                           

                Quarrels That Have Shaped the Constitution Ch. IV                    Gibbons v. Ogden (1824)     Presenter(s):


Sep 22    Analyzing Points of Inflection: From the Marshall Court to the Taney Court


                Quarrels That Have Shaped the Constitution Ch. V


                Charles River Bridge v. Warren Bridge (1837)[24]     Presenter(s):


Sep 24    Integrating Perspectives on Interstate Commerce:  Path Dependence & Path Independence


                BREST, LEVINSON, BALKIN, & AMAR pp. 148-164

                CASENOTES LEGAL BRIEFS pp. 10-11


                Mayor of the City of New York v. Miln (1837)     Presenter(s):

                Cooley v. Board of Wardens (1851)     Presenter(s):


Sep 27    Seeing Invisible People: Race[25] & Gender before the Taney Court


                BREST, LEVINSON, BALKIN, & AMAR pp. 117-125, 168-183

                CASENOTES LEGAL BRIEFS pp. 12-13


                Groves v. Slaughter (1841)     Presenter(s):

                Prigg v. Pennsylvania (1842)     Presenter(s):


Sep 29    Making People Invisible:  The Constitution, Slavery, and Personhood


                BREST, LEVINSON, BALKIN, & AMAR pp. 183-214

                CASENOTES LEGAL BRIEFS pp. 14

                Quarrels That Have Shaped the Constitution Ch. VI               Dred Scott v. Sanford (1857)     Presenter(s):


Oct 1       Analyzing Points of Inflection:  Cultural Path Dependence[26] and Private Resistance


                BREST, LEVINSON, BALKIN, & AMAR pp. 241-270, 285-296, 314-330

                CASENOTES LEGAL BRIEFS p. 17


Oct 4       Spotting Folkways Amid Law-Ways:  When Resistance Is Public


                BREST, LEVINSON, BALKIN, & AMAR pp. 270-281

                CASENOTES LEGAL BRIEFS p. 18                                           Plessy v. Ferguson (1896)[27]     Presenter(s):


Oct 6       Spotting Law-Ways Amid Folkways:  When Resistance Is Too Public


          United States v. Shipp     Presenter(s):

Oct 8       Analyzing Points of Inflection:  Liberty Yes!  Equality No! 


                BREST, LEVINSON, BALKIN, & AMAR pp. 332-337, 343-351

Oct 11     Enacting Mr. Herbert Spencer’s Social Statics:  Concocting Liberty to Contract


                BREST, LEVINSON, BALKIN, & AMAR pp. 337-343

                Quarrels That Have Shaped the Constitution Ch. XII            Lochner v. New York (1905)     Presenter(s):

                CASENOTES LEGAL BRIEFS p. 21


Oct 13     Disintegrating Interstate Commerce:  Path Dependence & the Twilight Zone


                BREST, LEVINSON, BALKIN, & AMAR pp. 355-374

                Quarrels That Have Shaped the Constitution Chs. VIII, XI, & XIV

                CASENOTES LEGAL BRIEFS pp. 22-23                                Hammer v. Dagenhart (1918)     Presenter(s):


Oct 15     Switching in Time: Footnote Four


                BREST, LEVINSON, BALKIN, & AMAR pp. 415-445

                CASENOTES LEGAL BRIEFS pp. 28-30


Oct 20     Modern Federalism & Commerce


                BREST, LEVINSON, BALKIN, & AMAR pp. 464-551       Katzenbach v. Morgan (1966)     Presenter(s):

                CASENOTES LEGAL BRIEFS  pp. 31-36                   South Carolina v. Katzenbach (1966)     Presenter(s):


Oct 22     Post-Modern Federalism


                BREST, LEVINSON, BALKIN, & AMAR pp. 551-620      Printz v. United States (1997)     Presenter(s):

                CASENOTES LEGAL BRIEFS  pp. 37-38, 40, 42        Garcia v. San Antonio MTA  (1985)     Presenter(s):


Oct 25     Experiencing Θαυμάζειν


                BREST, LEVINSON, BALKIN, & AMAR  pp. 621-645

                CASENOTES LEGAL BRIEFS  p. 44                                    United States v. Nixon (1974)     Presenter(s):


Oct 27     Separating Institutions and Sharing Powers


                BREST, LEVINSON, BALKIN, & AMAR  pp. 645-704          Morrison v. Olson (1988)     Presenter(s):

                CASENOTES LEGAL BRIEFS  pp. 45-48                                  I. N. S.  v. Chadha (1983)     Presenter(s):


Oct 29     Controlling Presidential War Powers


                BREST, LEVINSON, BALKIN, & AMAR  pp. 704-724

                CASENOTES LEGAL BRIEFS  pp. 49-50


                Youngstown Sheet & Tube Co. v. Sawyer (1952)     Presenter(s):


Nov 1     Splitting Differences in Brown I (1954) and Brown II (1955)


                BREST, LEVINSON, BALKIN, & AMAR  pp. 737-768

                CASENOTES LEGAL BRIEFS  pp. p. 56


                Brown v. Board of Education of Topeka, Kansas (1954)     Presenter(s):

                Brown v. Board of Education of Topeka, Kansas (1955)     Presenter(s):



Nov 3     Post-Election Chatter


Nov 5     Resisting Massively


                BREST, LEVINSON, BALKIN, & AMAR  pp. 768-800

                CASENOTES LEGAL BRIEFS  pp. 59-60


                Green v. New Kent County School Board (1968)     Presenter(s):


Nov 8     Analyzing Points of Inflection:  Plus ça change, plus c’est la même chose


                Heart of Atlanta Motel (1964)     Presenter(s):

                Katzenbach v. McClung (1964)     Presenter(s):


Nov 10   Pronouncing Principles and Obscuring Perspectives:  Principles, Victims, and Perpetrators


                BREST, LEVINSON, BALKIN, & AMAR  pp. 801-867           Milliken v. Bradley (1974)     Presenter(s):

                CASENOTES LEGAL BRIEFS  pp. 60, 62-63, 65           Korematsu v. United States (1944)     Presenter(s):


Nov 12   Administering Death in an Aggregately Racist System


                BREST, LEVINSON, BALKIN, & AMAR  pp. 884-894         McCleskey v. Kemp (1987)     Presenter(s):

                CASENOTES LEGAL BRIEFS  p. 68


Nov 15   Acting Affirmatively and Preferentially Without Acting Racially


                BREST, LEVINSON, BALKIN, & AMAR  pp. 898-920

                CASENOTES LEGAL BRIEFS  pp. 69-70


                Regents of the University of California v. Bakke (1978)     Presenter(s):


Nov 17   Muddling Through [or Muddying] Affirmative Action Law


                BREST, LEVINSON, BALKIN, & AMAR  pp. 920-973

                CASENOTES LEGAL BRIEFS  pp. 72-74


                Adarand Constructors v. Pena (1995)     Presenter(s):

                City of Richmond v. J. A. Croson Co. (1989)     Presenter(s):


Nov 19   Bringing Affirmative Action in the 21st Century


                BREST, LEVINSON, BALKIN, & AMAR  pp. 973-983[28]


                Grutter v. Bollinger (2003)     Presenter(s):

                Gratz v. Bollinger (2003)    Presenter(s):


Nov 22   Scrutinizing the Equal Protection Clause Intermediately


                BREST, LEVINSON, BALKIN, & AMAR  pp. 985-1053

                CASENOTES LEGAL BRIEFS  pp. 77-80                           Frontiero v. Richardson (1973)     Presenter(s):




Nov 24   Understanding Sex but Bollixing Gender


                BREST, LEVINSON, BALKIN, & AMAR  pp. 1053-1113

                CASENOTES LEGAL BRIEFS  pp. 81-84


                Michael M. v. Sonoma County Superior Court (1981)     Presenter(s):


Nov 29   Analyzing Abortion as Aberration and as Augury


                BREST, LEVINSON, BALKIN, & AMAR  pp. 1131-1199

                CASENOTES LEGAL BRIEFS  pp. 91-92                                              Roe v. Wade (1973)     Presenter(s):


Dec 1      Understanding Abortion since Roe


                BREST, LEVINSON, BALKIN, & AMAR  pp. 1199-1243

                CASENOTES LEGAL BRIEFS  pp. 93-94


                Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)     Presenter(s):


Dec 3      Establishing Sexual orientation as a Constitutional Category


                BREST, LEVINSON, BALKIN, & AMAR  pp. 1243-1275

                CASENOTES LEGAL BRIEFS  pp. 95-97


                Bowers v. Hardwick (1986)     Presenter(s):

                Lawrence v. Texas (2003)    Presenter(s):


Dec 6      Preparing for the Final Examination


Dec 8    Preparing for the Final Examination


[1]  Henry Adams:   “Nothing in education is so astonishing as the amount of ignorance it accumulates in the form of inert facts.”  


[2]  On the other hand, I shall also try to sneak some information to you.  In the sentence to which this is the footnote, please notice that I have instructed you that common usage is to capitalize “the Constitution” but not to capitalize “constitutional law.”  In addition, I have used “to effect” to mean “to cause to exist;”  by contrast, “to affect” usually means “to have an influence on.”  This footnote also shows that quotation marks go outside punctuation.


[3]   To phrase the matter in a different way, by design I should become even more useless as the course progresses!


[4]  This sentence seems redundant [because almost all reaccreditation teams feature cretins], but some reaccreditation teams also feature literates.

[5]  The alternative is the deadly bloviator at the front of the room. 


[6]  Unlike the deadly bloviator at the front of the room. 


[7]  Have you checked out the fifth page [not counting the inside of the front cover] of Casenotes Legal Briefs?  You will learn there how to get electronic access to the briefs for which you paid.


[8]  Try Kermit L. Hall ‘s The Oxford Guide to United States Supreme Court Decisions in the reference section of Collins Library. 


[9]  Before you see me, do your own “bare bones” research.  For cases that are more than a few years old, consult the appropriate Landmark Briefs and Arguments of the Supreme Court of the United States,  edited by Philip B. Kurland and Gerhard Casper.  Look over the briefs [written arguments] and oral arguments [interchanges in front of the justices of the Court] that you find listed under your case’s name.  If your case dates from the latter half of the 20th Century, look for it among the cases in May It Please the Court at Collins Library.  Is the landmark that you will be presenting to be found in Constitutional Stupidities, Constitutional Tragedies, edited by William N. Eskridge and Sanford Levinson? 


[10]  On the other hand, you may want to scour the library for books that summarize arguments in the conference of the Supreme Court of the United States (SCOTUS).  See, e.g., The Supreme Court in Conference (1940-1985), Del Dickson (ed.).


[11]  See The Evolving Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning, edited by Jethro K. Lieberman. 


[12]  I’ll help you most if you see what the reference section of Collins Library affords you.  For example, Tony Mauro [Supreme Court reporter for USA Today] has created Illustrated Great Decisions of the Supreme Court (2000).  Consult that work to see if it will help your presentation.


[13]  I shall  grade most generously those presentations the bulk of which appears at as written material for classmates and me to master.  Classroom presentations should summarize matters that the presenter or presenters have committed to writing. 


[14]  Please be aware of Preview of United States Supreme Court Cases, a periodical that will enable you to relate a landmark to current cases at the SCOTUS.


[15]  If instead you would learn to work hard, wait tables!


[16]  Of course, I have no clue how long your essay should or will be.  However, students somehow find meaningless estimates reassuring.


[17]  I do not subscribe to any particular style.  I am indifferent concerning APSA, APA, Chicago Manual, MLA, and so on and on and on.


[18]  I have constructed this syllabus to meet my requirements, except that my footnotes are too small for me to read.

[19]  Take a look at the Encyclopedia of the American Constitution,  edited by Leonard W. Levy and Kenneth L. Karst, in Collins Library. 


[20]  Entries capitalized in this syllabus are available for purchase at the UPS Bookstore.


[21]  The excerpt from Richard Fallon’s article in the Harvard Law Review is available to members of the course at under “Constitutional Interpretation.”  Just click on “Fallon,” please.


[22]  Try the web:  OR  OR  OR  other sources.


[23]  The 1987 edition of John A. Garraty’s Quarrels That Have Shaped the Constitution is on reserve at Collins Library.

[24]  Hint: The textbook has no excerpt for this case. Please locate it on the web.


[25]  Please peruse African Americans and the Living Constitution, edited by John Hope Franklin and Genna Rae McNeil. 


[26]  On Path-Dependence, see Paul Pierson, “Increasing Returns, Path Dependence, and the Study of Politics,” The American Political Science Review Vol. 94, no. 2 (June 2000) pp. 251-267.  To get an electronic copy, search The American Political Science Review JSTOR at for “Paul Pierson” as author.  The stable URL for this article is .


[27]  Have you checked to see if any special paper on Plessy might be there?  You should!

[28]  Take a look at Brest, Levinson, Balkin, and Amar, 2003 Supplement to Processes of Constitutional Decisionmaking – Cases and Materials, on reserve in Collins Library.