Northern Illinois University

Department of Political Science

POLS 410
Constitutional Law I

Separation of Powers, Federalism, and Economic Liberty

The course begins and ends with the U.S. Constitution. What does it mean? Can the founders—former British subjects—help us? Maybe so, maybe not. One thing, however, is abundantly clear: the idea that the founding fathers had a unified vision of America is wholesale fiction. We know better. Many of the founders had no desire to establish a centralized nation, instead campaigning for something more like the current European Union, a confederation of regional nation-states. Others, like the ambitious immigrant Alexander Hamilton, pressed for a strong national government. James Madison, originally aligned with Hamilton, brokered a brilliant, if slippery, compromise that enshrined this conflict at the center of our political system: the perennial battle for supremacy between national and state authority. The propaganda they spread to lobby for its adoption—collectively know as The Federalist Papers–was so successful that not only was the document agreed to by the American people, it is the oldest written constitution in the world. But what does it mean? What Hamilton and Madison said it meant? Hamilton went on to invent the national economy before being gunned down in cold blood by the evil Aaron Burr. Madison ultimately betrayed his original nationalist position and went on to align himself with the political master of evasion, reversal, and misrepresentation: Thomas Jefferson. Given these facts, should we be bound by the dead hand of the past?

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 2010

T TH 11:00 - 12:15 DU 459

Instructor: Artemus Ward
Office: 410 Zulauf Hall
Office Phone: 815-753-7041
Office Hours: T 1:30pm-4:30pm & by appointment

Learning Objectives

1. To think critically about the American form of government, the role of the constitution, and the U.S. Supreme Court.
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 and Constraints, 7th ed. (Washington, DC: Congressional Quarterly Press, 2011).

Course Requirements


Mid-Term Exam

The mid-term will be an on-line, objective test consisting of both true-false and multiple choice questions. The material covered will be the cases listed on the syllabus up to the mid-term exam date. The test will be available on Blackboard for a 24-hour period. You may take the test at any time during that window. Once you begin the exam, you will have 30 minutes to answer 25 questions. Each question is worth 4 points each for a total of 100 points.

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 paper grade for each conference missed. 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 the same format as the midterm but will only include the course material covered AFTER the midterm exam.


Grading System

Final grades will be determined by the following scale:



General Grading Definition






Very Good






Below Average




Grade Breakdown:


% of Total Grade

Mid-Term Exam


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 24
Course Introduction, syllabus review.
TH Aug 26 Introduction to the U.S. Supreme Court; how to brief a case.
Read – Epstein & Walker introductory material pp. 3-57, the U.S. Constitution in back of book, and Kerr’s “How to Read a Legal Opinion” in the course documents section of Blackboard.

Institutional Authority

Week 2 The Judiciary
T Aug 31
Judicial Review: Marbury v. Madison (1803), Martin v. Hunter's Lessee (1816).
TH Sep 2 No Class. Annual Meeting of the American Political Science Association, Washington DC.

Week 3 The Judiciary & the Legislature
T Sep 7 Constraints: Ex parte McCardle (1869), Nixon v. United States (1993).
TH Sep 9
Internal Affairs: Powell v. McCormack (1969), U.S. Term Limits v. Thornton (1995).

Week 4 The Legislature & The Executive
T Sep 14 Sources & Scope of Legislative Power: McCulloch v. Maryland (1819), McGrain v. Daugherty (1927).
TH Sep 16
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 21 Domestic Powers: Morrison v. Olson (1988), Clinton v. Jones (1997).
TH Sep 23 No Class.

Week 6 Separation of Powers: War I
T Sep 28 Civil War: The Prize Cases (1863), Ex parte Milligan (1866).
TH Sep 30
WWII: Ex parte Quirin (1942), Korematsu v. United States (1944).

Week 7 Separation of Powers: War II
T Oct 5
Youngstown Sheet & Tube v. Sawyer (1952), Hamdan v. Rumsfeld (2006).
TH Oct 7
Conference Day I -- Justices meet to deliberate and vote on cases. Midterm Exam will be available on-line for a 24-hour period beginning at the end of class.

Nation-State Relations

Week 8 Federalism: The Doctrinal Cycle I
T Oct 12 McCulloch v. Maryland (1819), Dred Scott v. Sandford (1857).
TH Oct 14 Lochner v. New York  (1905), Hammer v. Dagenhart (1918), Adkins v. Children’s Hospital (1923).

Week 9 Federalism: The Doctrinal Cycle II
T Oct 19
No Class.
TH Oct 21 West Coast Hotel v. Parrish (1937), United States v. Darby Lumber (1941), New York v. United States (1992).

Week 10 Doctrinal Cycle III & Commerce I
T Oct 26
Printz v. United States (1997), Gibbons v. Ogden (1824), United States v. E.C. Knight (1895). Final opinions from Conference I due.
TH Oct 28 No Class.

Week 11 Commerce II
T Nov 2
New Deal: Stafford v. Wallace (1922), Schechter Poultry v. United States (1935), Carter v. Carter Coal (1936).
TH Nov 4 Expansion: N.L.R.B. v. Jones & Laughlin (1937), Wickard v. Filburn (1942). Retraction: United States v. Lopez (1995).

Economic Liberties

Week 12 Conference Day II
T Nov 9 Modern Limits: United States v. Morrison (2000), Gonzales v. Raich (2005).
TH Nov 11 Conference Day II - Justices meet to deliberate and vote on cases.

Week 13 Contract Clause
T Nov 16
Foundations: Fletcher v. Peck (1810) and Dartmouth College v. Woodward (1819).
TH Nov 18 Decline: Charles River Bridge v. Warren Bridge (1837) and Stone v. Mississippi (1880). Revitalization: Home Building & Loan Assn. v. Blaisdell (1934).

Week 14 Eminent Domain
T Nov 23
Foundations: United States v. Causby (1946), Penn Central Transportation Company v. City of New York (1978). Public Use: Berman v. Parker (1954).
TH Nov 25 No Class.

Week 15 The Takings Clause and the Disputed Election of 2000
T Nov 30
Public Use: Hawaii Housing Authority v. Midkiff (1984) and Kelo v. City of New London (2005).
TH Dec 2
Bush v. Gore (2000) Read Read Per Curiam, Rehnquist, Stevens, Ginsburg, and Breyer opinions only.
Final opinions from Conference II and all extra credit opinions due.

Week 16 T Dec 7 Final Exam: Available on Blackboard for a 24-hour period beginning at 10am.