Political Science
Political Science
PS 341/His 388: Constitution and the Supreme Court
CRN: 1498/2413
Fall, 2008
http://www.sou.edu/polisci/341.syl.html
Paul Pavlich
Office: TA 120A (Hours: M 10-12, WF 11-12, Th 2-3)
pavlich@sou.edu
541.552.6130
http://www.sou.edu/polisci/pavlich.html
SYLLABUS
OBJECTIVES: The relationship between law and politics is difficult to articulate. The primary goal of this course is to facilitate a better understanding of that relationship. The United States Supreme Court stands at the intersection of law and politics. On the one hand it is the highest court in the land, and therefore must have powerful influence on the development of law. On the other it is juxtaposed to Congress and the President by the Constitution and of necessity drawn into most political controversies as ally or potential foe. The goal of the class is to identify is perhaps better stated as attempting to clarify the identify crisis from which the court suffers. How much law, how much politics and how much duck and cover?
TEXT: There is no text for the class. All reading assignments will be linked to the class web site. Assignments must read carefully and perhaps several times in order to capture their full significance.
PEDAGOGY: Class will be conducted in a combination of lectures, classroom discussions, and "Socratic" dialogues. For those unfamiliar with Socratic Method, students are called upon to answer a series of questions raised by or about the reading for the day. This process enhances student capacity to recognize and analyze questions and issues in forms other than those presented by the readings.
STUDENT EVALUATION: Students will be evaluated on the basis of three take home exams (25 points each), and four "briefs" of appellate court opinions (5 points each) as well as participation in Socratic Dialogues. The take home exams are to be typed and will be accompanied by detailed instructions. All exams will be problem solving type problems encouraging students to think critically through an environmental policy problem. You will be asked to analyze the issues triggered by the problem, identifying various ways to frame and solve the problem. No outside research is necessary or helpful for the exams. A description of a brief is linked to the class website. Briefs consist of a concise summary of the significant aspects of an appellate court opinion assigned to the entire class. Each brief should be brief. Your goal should be to reduce them to no more than one typed page. Don’t become neurotic attempting to achieve that goal. Each brief should be divided into 6 distinct sections: (1) Facts, (2) Action, (3) Issue(s), (4) Holding, (5) Reasoning, and (6) Dissents/Concurrences.
For the Socratic Dialogue component, students will be required to respond orally to a series of questions drawn from the reading for the day. Each day two or three students will be expected to take the lead in discussing that reading assignment. These students in effect think out loud and teach their peers the material for the day. Each student is expected to become one of the principal participants in four or five class discussions during the term. Students, who fail to participate, or participate in a grossly deficient manner, will lose points earned elsewhere in the class.
Roll is not taken and apart from participation in Socratic dialogues, class attendance does not figure into grading. The daily reading assignments and discussion subjects are identified at the class web page.
DAILY OUTLINE
(Subject to change with very little notice)
An on line legal dictionary is available at http://dictionary.lp.findlaw.com/
September 30: Overview of the course including a concise history of the United States Supreme Court.
October 2: An introduction to the Supreme Court structure and processes; following a case from trial to final review by the Court. The logic and internal norms of the Supreme Court.
READ: The Supreme Court on Itself, Certiorari , American Legal System Outline
October 7-9: The Framers and the Constitution: what did founders of the Republic have in mind for the national court system generally and the Supreme Court in particular? What was the intended “legal” role for the Court and what was the intended political role? An introduction to legal reasoning and neutral principles.
READ: Article III of the Constitution, Federalist Paper 78.
October 9-14: The Supreme Court confuses its legal and political role in the Dred Scott case: an introduction to the art of self-restraint.
READ: Dred Scott v Sandford , Ashwander v TVA
EXAM #1 Distributed October 14, due October 16 at beginning of class.
October 16- NOVEMBER 4 The Supreme Court and the exercise of Judicial Review.
October 16 The concept of judicial review is not specifically mentioned in the Constitution yet it is clearly on the collective minds of the framers. What did they believe that courts should do to safeguard the Constitution? Is judicial review an anti-democratic idea? Anti-majoritarian?
READ: Marbury v Madison (first paragraph only: fact summary)
October 21-23 Marbury v
READ: Marbury v Madison or Marbury v Madison
October 28 Exploring the concept of Judicial Review. What is the scope and nature of the authority granted to the Court in its role as interpreter of the Constitution? What are the limits on that authority? How does judicial review square with the idea of democracy and an independent, common law court system? BRIEF #1 (Marbury v
READ: Judicial Review, Originalist/non originalist
October 30-November 4 Political Questions: acknowledged and ignored. The Court’s history of its exercise of judicial review is full of controversy. We have already observed the Court in action in Dred Scott. All exercises of judicial review will generate controversy and raise questions about its legitimacy. The Court has developed tools of self-restraint to conserve its political capital and ensure it is acting within the parameters of its mission under the Constitution. We will examine episodes of restraint to understand the benefits and perils of not acting. One such situation is when the Court determines that to resolve a dispute it would not be acting as a judicial body, but rather political entity invading the prerogative of Congress, the President or the states. Making that distinction in practice is not as easy as articulating it as an abstract proposition. What should the Court consider in making this distinction?
READ: Politcal Questions,
November 4 Standing: Who can invoke the Court’s authority to exercise judicial review? Some lawsuits appear to be disputes appropriate for judicial resolution, but upon after a second look may not in fact be traditional lawsuits. What characteristics or qualities should litigants possess that authorize courts to resolve their disputes and in so doing substantially circumscribe the authority of the political branches of government?
Exam #2: Distributed November 4, due November 6
November 6-December 4 The Supreme Court as champion of the rights of the individual? Here we begin the exploration of the topics that most students expected when registering for the class: an examination of the Supreme Court’s role in implementing the rights that individuals have under the Constitution. The fundamental question is when sit should the Supreme Court protect individuals from the policy preferences of the majority as expressed by Congress and the President? Most of the examples will come from the modern era but we will begin in the Supreme Court’s notorious past for context.
November 6-11
READ: Lochner v New York
November 13 The Supreme Court enters the 20th century of privacy and technology: when and how should the court system intervene to protect individuals from Big Brother? Brief #2 Lochner v
READ: U. S. v Carolene Products, Griswold v Connecticut
December 2-4 Second Amendment Right to Keep and Bear Arms. Does the Second Amendment protect the right for individuals to possess and own guns? Does it authorize Courts to invalidate federal, state or local restrictions on gun ownership? Did the Court’s decision from last June conform to the standards of Supreme Court decision making? Brief #4 (Roe, Glucksberg OR
READ:
Exam #3 Distributed December 4, Due December 11 per instructions contained in the exam