Northern Illinois University

Department of Political Science

POLS 410
Constitutional Law I

Separation of Powers, Federalism, and Economic Liberty

This course covers the foundations of American constitutional law. We examine the concept of judicial review and the relationship between the Supreme Court and the elected branches of government: Congress and Presidency. We explore the issues of war and emergency power, the commerce clause, the power to tax and spend, and most importantly, the concept of federalism. Through a discussion of a number of Supreme Court cases on these topics, we will determine whether American political and constitutional development is best understood as a series of battles and resultant regime changes from more nationalist-oriented cooperative federalists to more states-rights oriented dual federalists, or whether something else is at work. Is America destined to repeat itself?

Fall 2007  T TH 9:30 - 10:45 DU 461

Instructor: Artemus Ward
Office: 410 Zulauf Hall
Office Phone: 815-753-7041
Office Hours: T 12:30pm-2:00pm & by appointment

Learning Objectives

1. To think critically about the American form of government.
2. To gain experience and knowledge by thinking critically about and participating in supreme court decision-making exercises.
3. To gain knowledge of the process and politics of constitutional decision-making.

Required Text

Lee Epstein and Thomas Walker. Constitutional Law for a Changing America: Institutional Powers & Constraints, 6th ed. (Washington, DC: Congressional Quarterly Press, 2007). THE BROWN BOOK.

Course Requirements



All students are required to attend each class. A sign-in sheet will passed around at the start of each class. It is your responsibility to LEGIBLY sign the attendance sheet each day. If I can’t read it, you weren’t there.

In-Class Participation

All students are required to participate when called on in class. Therefore, you must come to each class and be prepared to discuss that day's assigned cases. I will randomly call on students so that everyone has an equal chance to participate. Your participation grade is primarily based on those instances in which you are called on. Being unprepared or absent on those days will severely hurt this part of your grade. Though it is no substitute for being absent or unprepared on the days you are called on, you can help your participation grade by volunteering as often as you wish.

On-Line Participation

All students are required to go on-line each week through Blackboard. You are required to read each message posted to the discussion board, and by Friday post at least one (and not more than two) quality messages of your own about that week’s course material and/or current events that relate to the course such as developments in the U.S. Supreme Court. Toward that end, you may want to regularly consult the leading Supreme Court blog at as well as C-SPAN’s regular “America & the Courts” coverage, which generally airs Saturday’s at 6pm CST.

Moot Court and Paper

Participation in the Supreme Court decision-making exercise and paper - all students are required to participate in the exercise acting as a Supreme Court Justice. Failure to attend a conference day will result in a reduction of one full grade on your overall course participation grade. No exceptions. Each student is required to write one 5-6 pp. paper written in the form of an opinion (either majority, concurring, or dissenting) on one moot court case. IT IS ESSENTIAL THAT YOU FOLLOW THE SUGGESTIONS ON THE “PAPER TIPS” DOCUMENT located in the “course documents” section of Blackboard.

Extra Credit

You may write additional opinions for extra credit. One quality 2-3-page paper that covers 1/3 of the required opinions is worth 1/3 a grade boost on your main paper grade. A quality 4-page paper that covers 2/3 of the required opinions is worth 2/3 a grade boost on your main paper grade. A quality 5-6-page paper that covers all of the required opinions is worth 1 full grade boost on your main paper grade. The maximum amount of extra credit you can gain is one full grade boost—that means one 5-6 page paper, or one 2-3 page paper and one 4 page paper, or three 2-3 page papers. See the course documents section for further details.

Final Exam

The final exam is a comprehensive essay covering the entire course. You will be asked to answer an overall question based on specific opinions in the cases we have read. You may use your notes, briefs, or anything that is your own work. You may not use the book or any other material that is not your own work with the exception of a copy of the syllabus and the U.S. Constitution. Can your notes/briefs be typed? Of course they can. The final will take the entire exam period so managing your allotted time well is essential. Bring a blue book or two and something to write with. Write legibly. If I can’t read it, I can’t grade it.

Graduate Students

Students taking the course for graduate credit ONLY have to complete a 15-20pp. research paper. Graduate students have no other course requirements. Of course it is understood that at the graduate level you will do all of the assigned readings, attend every class, and consistently participate in class discussions and the moot courts. There are several options for the required paper. You may expand the required undergraduate paper using additional cases, law review and other journal articles, and books. You may also do another type of research paper that is related to the course material such as an annotated bibliography, research proposal for a Master’s Thesis or Doctoral Dissertation, or other type of original research. See me as early in the semester as possible to discuss your choice. Graduate students do not need to write the 5-6 pp. paper required of all undergraduates nor take the final exam, unless of course you want to for fun! Your grade will be based 70% on your paper and 30% on participation.


Grading System

Final grades will be determined by the following scale:



General Grading Definition



High participation, submits high quality work, shows interest in the course



Participates actively, submits good quality work consistently



Some participation, submits average quality work



Lack of participation, below average quality work



Little or no participation, submits unacceptable quality of work

Grade Breakdown:


% of Total Grade



In-Class Participation


On-Line Participation


5-6 Page Moot Court Paper


Final Exam




Course Policies

1. Extracurricular Activities - It is your responsibility to notify me in advance of any activities that will disrupt your attendance. If your activities make it impossible for you to attend classes each week, you should consider withdrawing from the course. Material is covered in class that cannot be found in the course readings.

2. Late Work - Anything turned in late will be marked down one-third grade for every day it is overdue. Exceptions are made only in the most extraordinary circumstances and I will require some sort of documentation to make any accommodation.

3. Cheating and Plagiarism - PLAGIARISM, SIMPLY DEFINED, IS TAKING SOMEONE ELSE'S WORDS OR IDEAS AND REPRESENTING THEM AS BEING YOUR OWN. It is specifically prohibited by University regulations, which state:

Good academic work must be based on honesty. The attempt of any student to present as his or her own work that which he or she has not produced is regarded by the faculty and administration as a serious offense. Students are considered to have cheated if they copy the work of another during an examination or turn in a paper or an assignment written, in whole or in part, by someone else. Students are guilty of plagiarism, intentional or not, if they copy material from books, magazines, or other sources without identifying and acknowledging those sources or if they paraphrase ideas from such sources without acknowledging them. Students guilty of, or assisting others in, either cheating or plagiarism on an assignment, quiz, or examination may receive a grade of F for the course involved and may be suspended or dismissed from the university. (Undergraduate Catalog)

4. Statement Concerning Students with Disabilities - Under Section 504 of the Rehabilitation Act of 1973, NIU is committed to making reasonable accommodations for persons with documented disabilities. Those students with disabilities that may have some impact on their coursework and for which they may require accommodations should notify the Center for Access-Ability Resources (CAAR) on the fourth floor of the Health Services Building (753-1303). CAAR will assist students in making appropriate accommodations with course instructors. It is important that CAAR and instructors be informed of any disability-related needs during the first two weeks of the semester.

5. Undergraduate Writing Awards - The Department of Political Science will recognize, on an annual basis, outstanding undergraduate papers written in conjunction with 300-400 level political science courses or directed studies. Authors do not have to be political science majors or have a particular class standing. Winners are expected to attend the Department's spring graduation ceremony where they will receive a certificate and $50.00. Papers, which can be submitted by students or faculty, must be supplied in triplicate to a department secretary by the end of February. All copies should have two cover pages - one with the student's name and one without the student's name. Only papers written in the previous calendar can be considered for the award. However, papers completed in the current spring semester are eligible for the following year's competition even if the student has graduated.

6. Department of Political Science Web Site - Undergraduates are strongly encouraged to consult the Department of Political Science web site on a regular basis. This up-to-date, central source of information will assist students in contacting faculty and staff, reviewing course requirements and syllabi, exploring graduate study, researching career options, tracking department events, and accessing important details related to undergraduate programs and activities. To reach the site, go to

Course Calendar

Week 1 Course Introduction
T Aug 28 Introduction, syllabus review, how to brief a case. For help using Blackboard, see:
TH Aug 30 No Class.

Institutional Authority

Week 2 The Judiciary

T Sep 4 Judicial Review: Marbury v. Madison (1803), Martin v. Hunter's Lessee (1816). (Optional Background Information – Epstein & Walker introductory material, the U.S. Constitution in back of book).
TH Sep 6 Constraints: Ex parte McCardle (1869), Hamdan v. Rumsfeld (2006).

Week 3 The Legislature
T Sep 11 The Legislature—Internal Affairs: Powell v. McCormack (1969), U.S. Term Limits v. Thornton (1995).
TH Sep 13 Sources & Scope of Legislative Power: McCulloch v. Maryland (1819), McGrain v. Daugherty (1927).

Week 4 The Legislature & The Executive
T Sep 18 Watkins v. United States (1957), Barenblatt v. United States (1959).
TH Sep 20 Watergate: United States v. Nixon (1974), Nixon v. Fitzgerald (1982). In class we will listen to the Nixon Oval Office Tapes: "Smoking Gun" Haldeman and Nixon, RA 6:27. "Cancer on the Presidency" & Blackmail Dean and Nixon, RA 3:33; 29:30.

Week 5 The Executive
T Sep 25 Morrison v. Olson (1988), Clinton v. Jones (1997).
TH Sep 27 Clinton v.
New York  (1998), War Powers: The Prize Cases (1863)

Week 6 Separation of Powers: War I
T Oct 2 Ex parte Milligan (1866),
Ex parte Quirin (1942).
TH Oct 4
Korematsu v. United States (1944), Youngstown Sheet & Tube v. Sawyer (1952).

Week 7 Separation of Powers: War II
T Oct 9 War on Terror: Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006).
TH Oct 11
Conference Day I -- Justices meet to deliberate and vote on cases.

Nation-State Relations

Week 8 Federalism: The Doctrinal Cycle I
T Oct 16 From Cooperative to Dual Federalism: McCulloch v. Maryland (1819), Dred Scott v. Sandford (1857).
TH Oct 18 Dual Federalism Reigns: Lochner v.
New York (1905), Hammer v. Dagenhart (1918), Adkins v. Children’s Hospital (1923).

Week 9 Federalism: The Doctrinal Cycle II
T Oct 23 Cooperative Federalism Reigns: West Coast Hotel v. Parrish (1937), United States v. Darby Lumber (1941), and Williamson v. Lee Optical Co. (1955).
TH Oct 25 Dual Federalism Returns: New York v. United States (1992) and Printz v. United States (1997).

Week 10 Commerce I
T Oct 30 Foundations: Gibbons v. Ogden (1824), United States v. E.C. Knight (1895), Stafford v. Wallace (1922).
TH Nov 1 New Deal: Schechter Poultry v. United States (1935), Carter v. Carter Coal (1936), and N.L.R.B. v. Jones & Laughlin (1937).
Final opinions from Conference I due.

Week 11 Commerce II
T Nov 6 Expansion: Wickard v. Filburn (1942). Retraction: United States v. Lopez (1995).
TH Nov 8 Modern Limits: United States v. Morrison (2000) and Gonzales v. Raich (2005) (on-line only: abridged, full).

Economic Liberties

Week 12 Conference Day II & Contracts
T Nov 13 Conference Day II - Justices meet to deliberate and vote on cases.
TH Nov 15 Foundations: Fletcher v. Peck (1810) and Dartmouth College v. Woodward (1819).

Week 13 The Contract Clause
T Nov 20 Decline: Charles River Bridge v. Warren Bridge (1837) and Stone v. Mississippi (1880). Revitalization: Home Building & Loan Assn. v. Blaisdell (1934).
TH Nov 22 No Class.

Week 14 Eminent Domain & the Takings Clause
T Nov 27 Foundations: United States v. Causby (1946), Penn Central Transportation Company v. City of New York (1978). Public Use: Berman v. Parker (1954).
TH Nov 29 Public Use: Hawaii Housing Authority v. Midkiff (1984) and Kelo v. City of New London (2005).

Week 15 The Disputed Election of 2000
T Dec 4 Bush v. Gore (2000). Read Per Curiam and Rehnquist opinions only.
TH Dec 6 Bush v. Gore (2000) continued. Read Stevens, Ginsburg, and Breyer only.
Final opinions from Conference II and all extra credit opinions due.

Week 16 Final Exam: Thurs. December 13, 10-11:50 a.m.