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?

Spring 2008

T TH 2:00 - 3:15 DU 461

Instructor: Artemus Ward
Office: 410 Zulauf Hall
Office Phone: 815-753-7041
Office Hours: T TH 12:30-1:45pm; T 5:00-5:45 & by appointment


Teaching Assistant: Emily Ebel

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).

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 & the Judiciary
T Jan 15 Introduction, syllabus review, how to brief a case.
Optional Background Information – Epstein & Walker introductory material, the U.S. Constitution in back of book, and Kerr’s “How to Read a Legal Opinion” in the course documents section of Blackboard.
TH Jan 17 Judicial Review: Marbury v. Madison (1803), Martin v. Hunter's Lessee (1816).

Institutional Authority

Week 2 The Judiciary & The Legislature
T Jan 22 Constraints: Ex parte McCardle (1869), Hamdan v. Rumsfeld (2006).
TH Jan 24 The Legislature—Internal Affairs: Powell v. McCormack (1969), U.S. Term Limits v. Thornton (1995).

Week 3 The Legislature
T Jan 29 Sources & Scope of Legislative Power: McCulloch v. Maryland (1819), McGrain v. Daugherty (1927).
TH Jan 31 Watkins v. United States (1957), Barenblatt v. United States (1959).

Week 4 The Executive
T Feb 5 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.
TH Feb 7 Morrison v. Olson (1988), Clinton v. Jones (1997).

Week 5 Separation of Powers: War I
T Feb 12 Civil War: The Prize Cases (1863), Ex parte Milligan (1866).
TH Feb 14 WWII:
Ex parte Quirin (1942).

Week 6 Separation of Powers: War II
T Feb 19 Classes Cancelled
TH Feb 21 Classes Cancelled

Week 7 Separation of Powers: War III
T Feb 26 WWII & Aftermath:
Ex parte Quirin (1942), Korematsu v. United States (1944), Youngstown Sheet & Tube v. Sawyer (1952).
TH Feb 28 War on Terrorism: Hamdi v. Rumsfeld (2004), Hamdan v. Rumsfeld (2006).

Week 8 Separation of Powers: War III
T Mar 4
No Class. Benjamin Harrison Day.
TH Mar 6
Conference Day I -- Justices meet to deliberate and vote on cases.

Week 9 Spring Break

Nation-State Relations

Week 10 Federalism: The Doctrinal Cycle I
T Mar 18 McCulloch v. Maryland (1819), Dred Scott v. Sandford (1857), Lochner v.
New York (1905).
TH Mar 20 Hammer v. Dagenhart (1918), Adkins v. Children’s Hospital (1923).

Week 11 Federalism: The Doctrinal Cycle II
T Mar 25 West Coast Hotel v. Parrish (1937), United States v. Darby Lumber (1941).
TH Mar 27 New York v. United States (1992) and Printz v. United States (1997).

Week 12 Commerce I
T Apr 1 Foundations: Gibbons v. Ogden (1824), United States v. E.C. Knight (1895), Stafford v. Wallace (1922).
Final opinions from Conference I due.
TH Apr 3 No Class.

Week 13 Commerce II
T Apr 8 New Deal: Schechter Poultry v. United States (1935), Carter v. Carter Coal (1936), and N.L.R.B. v. Jones & Laughlin (1937).
TH Apr 10 Expansion: Wickard v. Filburn (1942). Retraction: United States v. Lopez (1995).

Economic Liberties

Week 14 Commerce III & Conference Day II
T Apr 15 Modern Limits: United States v. Morrison (2000), Gonzales v. Raich (2005) (on-line only: abridged, full).
TH Apr 17 Conference Day II - Justices meet to deliberate and vote on cases.

Week 15 The Contract Clause
T Apr 22 Foundations: Fletcher v. Peck (1810) and Dartmouth College v. Woodward (1819).
TH Apr 24 Decline: Charles River Bridge v. Warren Bridge (1837) and Stone v. Mississippi (1880). Revitalization: Home Building & Loan Assn. v. Blaisdell (1934).

Week 16 Eminent Domain & the Takings Clause
T Apr 29 Foundations: United States v. Causby (1946), Penn Central Transportation Company v. City of New York (1978). Public Use: Berman v. Parker (1954).
TH May 1 Public Use: Hawaii Housing Authority v. Midkiff (1984) and Kelo v. City of New London (2005).

Week 17 The Disputed Election of 2000
T May 6 Bush v. Gore (2000). Read Per Curiam and Rehnquist opinions only.
TH May 8 Bush v. Gore (2000) continued. Read Stevens, Ginsburg, and Breyer only.
Final opinions from Conference II and all extra credit opinions due.


Week 18 Final Exam: Tues. May 13, 2-3:50 p.m.