Gary J. Jacobsohn

This is a course in political science concerned with law; it is not a course in law offered by a political science department. The focus of the course is one of the most vital aspects of politics: interpreting and applying the nation's fundamental rules. This interpretive activity is critical in regard to the Constitution for the simple reason that the document defines us as a people. Constitutional law is thus best viewed as an extended commentary on the meaning of America. As such it lies at the heart of a liberal arts education.

In this class we examine the structures of power in a constitutional democracy, exploring contests over authority from John Marshall and Thomas Jefferson to Donald Trump, the disputed election of 2000, the challenge of terrorism in the 21st century, and the Affordable Care Act (“Obamacare”). Among the topics to be considered: the powers of the federal and state governments, the executive’s emergency powers, and the Supreme Court’s authority to nullify the acts of other branches. Under these general headings are to be found such issues as the power to regulate firearms, recognize foreign governments, overturn a judicial decision through congressional action, deprive citizens of rights during wartime, regulate immigration, and protect voting rights.

Constitutional interpretation has largely become the prerogative of the judiciary. As we shall see early in the course, there are sound, perhaps compelling, reasons for other public officials to immerse themselves deeply into constitutional interpretation. But the plain fact is that they often do not, and, even when they do, they frequently defer to past and anticipated judicial rulings. Whether right or wrong, good or bad, a judicial quasi-monopoly in constitutional interpretation means that to give a realistic picture of what happens in the United States, a course on constitutional authority must concentrate on the judiciary. Thus, one of our objectives is to explore how courts and judges function within the American political process. A recurring question is the role of judicial review in a constitutional democracy, how one justifies the possession of this extraordinary power by an essentially undemocratic institution in a regime committed to accountability in policy-making.

Another feature of this course and its main text is its attention to the comparative dimension of the American constitutional experience. One of the consequences of having the world’s oldest written Constitution is that the United States has become a notable exporter of constitutional ideas. Other nations have borrowed freely from our arrangements for formally constituting power. But in recent years American judges and scholars have turned their attention to the ways in which foreign constitutional experience might contain lessons for how we operate in this country. So, while our focus in this course is on American constitutional configurations, we will occasionally cast our eyes abroad for insights that might help us better understand ourselves through the prism of the other.

The division of the immense field of constitutional law into two courses customarily involves a separation between institutions (part 1) and rights (part 2). That custom is followed here with one major caution: the distinction is largely artificial. By constitutional design institutions in the United States were constructed to ensure the protection of certain rights. Indeed, a bill of rights was not even part of the original Constitution; its eventual inclusion should be viewed as a supplement to the protections implicit in the original constitutional architecture. The adequacy of these protections -- substance and coverage -- is another matter, about which there has always been intense disagreement. By the end of the course students should have an informed judgment on these questions, which is to say, on the desirability of constitutional reform and renewal.

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The focus of this course is on the ways in which the Constitution protects individual rights as it accommodates the often competing claims of groups, communities, and the state. We examine rights under the Constitution as they have evolved and been defined through judicial interpretation during periods of crisis and normalcy.  Some of the topics to be considered include: equal protection under law, substantive and procedural due process, freedoms of speech and religion, and privacy. Under these rubrics are to be found such issues as affirmative action, capital punishment, hate speech, property rights, abortion, and gender discrimination. If it is important to defend a right  -- for example, privacy – against the intrusive reach of the state, must all rights be so defended with equal vigilance?  Is there a principled way to distinguish among rights, say between speech and the right to bear arms, such that the Court would be justified in treating them differently as far as a constitutional defense is concerned?  By the end of the course students should have an informed judgment on such questions, which is to say, on the role of the Supreme Court in contemporary American politics.  Much of the reading is of Supreme Court opinions that highlight the politics of constitutional development.

1. No prerequisites
2. Hour Exam (30%), paper (30%), final exam (40%)

             Texts: Donald P. Kommers, John E. Finn, and Gary J. Jacobsohn. eds., AMERICAN

                                CONSTITUTIONAL LAW: LIBERTY, COMMUNITY, AND THE BILL OF

                                RIGHTS (Vol. 2, 3rd ed.)

Michael Dorf., ed., CONSTITUTIONAL LAW STORIES

357M - CONSTITUTIONAL STRUCTURES OF POWER

The focus of this course is on one of the most vital aspects of politics: interpreting and applying the nation's fundamental rules. While the emphasis is on the United States Supreme Court, the class will also look at how other constitutional polities address similar issues.  We examine constitutional structures of power by exploring contests over authority from John Marshall and Thomas Jefferson to Barack Obama and Donald Trump. Some of the topics to be considered include: the powers of the federal and state governments, the executive's emergency powers, and the Supreme Court's authority to nullify the acts of other branches. Under these general headings are to be found such issues as the power to regulate firearms, the power to regulate immigration, the power to overturn a judicial decision through congressional action, the power to deprive citizens of rights during wartime, the power to define the terms of impeachment, and the power to decide the outcome of a presidential election. Much of the reading is of Supreme Court opinions that highlight the politics of constitutional development. 

Requirements: one paper, hour exam, final exam

No prerequisites required

Gov 357 M – The Structure of Individual Liberties

The focus of this course is on the ways in which the Constitution protects individual rights as it accommodates the often competing claims of groups, communities, and the state. While the emphasis is on the United States Supreme Court, the class will also look at how other constitutional polities address similar issues.  We examine rights under the Constitution as they have evolved and been defined through judicial interpretation during periods of crisis and normalcy.  Some of the topics to be considered include: equal protection under law, substantive and procedural due process, freedoms of speech and religion, and privacy. Under these rubrics are to be found such issues as affirmative action, capital punishment, hate speech, property rights, abortion, and gender discrimination. Much of the reading is of Supreme Court opinions that highlight the politics of constitutional development.

1)    No prerequisites

2)    Hour Exam (30%), paper (30%), final exam (40%)

Texts:

Donald P. Kommers, John E. Finn, and Gary J. Jacobsohn. eds., AMERICAN CONSTITUTIONAL LAW: LIBERTY, COMMUNITY, AND THE BILL OF RIGHTS (Vol. 2, 3rd ed.)

Michael Dorf., ed., CONSTITUTIONAL LAW STORIES

Gov 384 – American Legal Philosophy

Quite often debate over legal issues either fails to generate much intellectual interest or fails to reach any sort of satisfactory resolution.  What makes this so frustrating is that discussion about law has the potential for illuminating many of the most profound questions of human existence.  Much of the problem is that people talk past each other, meaning different things when they refer to law, attempting to persuade others when the grounds of their own assumptions remain cloudy and unexamined.  Hence the focus of this course: to consider, within the American political context, what law has come to mean, and to understand the implications of this definition (as well as alternative conceptions) for public policy, constitutional interpretation, and citizenship.

Much of the canon of American jurisprudence includes important works falling beyond the specific concerns of this course.  Thus we will have little to discuss regarding issues located in the various domains of private law.  The selection of readings and topics reflect the fact this is a course in a graduate program in Public law.  The jurisprudential and philosophical issues that will preoccupy us are deeply implicated in the scholarship being done in the fields of judicial behavior, constitutional development, and comparative/international law.  Indeed, our goal is to discover exactly why they lie at the core of the discipline of Public Law. 

1)    No prerequisite

2)    Texts: TBA

3)    One reflective paper (30%), research paper (60%), class participation (10%)

Gov 357M - CONSTITUTIONAL STRUCTURES OF POWER

The focus of this course is on one of the most vital aspects of politics: interpreting and applying the nation's fundamental rules. This interpretive activity is critical in regard to the Constitution for the simple reason that the document defines us as a people.  Constitutional law is thus best viewed as an extended commentary on the meaning of America.  As such it lies at the heart of a liberal arts education. More specifically, we examine constitutional structures of power by exploring contests over authority from John Marshall and Thomas Jefferson to Barack Obama and the Tea Party. Some of the topics to be considered include: the powers of the federal and state governments, the executive's emergency powers, and the Supreme Court's authority to nullify the acts of other branches. Under these general headings are to be found such issues as the power to regulate firearms, the power to establish a national health care system, the power to overturn a judicial decision through congressional action, the power to deprive citizens of rights during wartime, the power to define the terms of impeachment, and the power to decide the outcome of a presidential election. A recurring question is the role of judicial review in a constitutional democracy, how one justifies the possession of this extraordinary power by an essentially undemocratic institution in a regime committed to accountability in policy-making. Much of the reading is of Supreme Court opinions that highlight the politics of constitutional development. 

Grading policy:

Two written exercises (30% each) and a final exam (40%).

Texts:

Donald P. Kommers , John E. Finn, and Gary J. Jacobsohn, American Constitutional Law: Governmental Powers and Democracy (Vol. 1, 3rd ed.)

Robert G. McCloskey, The American Supreme Court (5th ed.)

G. JACOBSOHN

Gov 357M: THE STRUCTURE OF INDIVIDUAL LIBERTIES

The focus of this course is on the ways in which the Constitution protects individual rights as it accommodates the competing claims of groups, communities, and the state. While the emphasis is on the United States Supreme Court, the class will also look at how other constitutional polities address similar issues.  We examine rights under the Constitution as they have evolved and been defined through judicial interpretation during periods of crisis and normalcy.  Some of the topics to be considered include: equal protection under law, substantive and procedural due process, freedoms of speech and religion, and privacy. Under these rubrics are to be found such issues as affirmative action, capital punishment, hate speech, property rights, abortion, and gender discrimination. Much of the reading is of Supreme Court opinions that highlight the politics of constitutional development.

Requirements: two short papers and a final exam

Grading: 30% for each paper, 40% for the final

Texts: Kommers, Finn, and Jacobsohn, AMERICAN CONSTITUTIONAL LAW (Vol. 2), 3rd. ed., another book TBA

Government 384N - Gary Jacobsohn

COMPARATIVE CONSTITUTIONALISM

According to the legal theorist, Roscoe Pound, "Experience, which is no longer merely local, must be subjected to the scrutiny of reason and developed by reason, and reason, which in its very nature transcends locality, must be tested by experience.  The wider the experience, the better is the test.  Thus the science of law must increasingly be comparative.  Whether we are dreaming of a world law or thinking of the further development of our own law...the methods of the jurist must have a basis in comparison."  Written in 1957, Pound's point is much older than fifty-six years; indeed the framers of the American Constitution proceeded in accordance with its insight, as their architectural design for constitution-making relied on comparative examples to supplement their Enlightenment faith in reason.  Still, the comparative method was for many years marginalized as a tool of constitutional analysis.  This is especially the case in the United States, where the longevity and success of the Constitution have surely contributed to a discernible insularity (and perhaps arrogance) in scholarly and juristic awareness of alternative constitutional possibilities.  Yet, with the extraordinary regime changes that have occurred throughout the world over the last several decades, this appears to be changing.  The heightened activity surrounding recent fundamental re-structurings of polities has led to a renewed interest in the old subject of comparative constitutionalism.  Indeed, it is routine now regularly to encounter news items on constitutional design, amendment, and interpretation.  This course will explore alternative traditions of constitutionalism, connecting them to the broader political cultures from which they have emerged.  It will examine the various shades of meaning underlying political values and moral theories that inform concepts -- for example, liberty, autonomy, equality, and community -- within various constitutional traditions.  It will seek to account for the similarities and differences within the constitutional ideas and arrangements in contrasting systems.  It will explore the role of constitutional courts in polities with varying conceptions of judicial review and its significance.  It will consider alternative approaches to the study of constitutional maintenance and change.  It will attempt to clarify the elusive concepts of constitutional identity and revolution.  And it will look closely at the ways in which foreign experience might illuminate and possibly enrich American constitutional understandings.  As that other famous comparative legal scholar, Tom Waits, has said (actually sung), ³I never saw my hometown until I stayed away too long.²   

Gov 357M - CONSTITUTIONAL STRUCTURES OF POWER  

The focus of this course is on one of the most vital aspects of politics: interpreting and applying the nation's fundamental rules. We examine constitutional structures of power by exploring contests over authority from John Marshall and Thomas Jefferson to Barack Obama and John Boehner. Some of the topics to be considered include: the powers of the federal and state governments, the executive's emergency powers, and the Supreme Court's authority to nullify the acts of other branches. Under these general headings are to be found such issues as the power to regulate firearms, the power to establish a national health care system, the power to overturn a judicial decision through congressional action, the power to deprive citizens of rights during wartime, the power to define the terms of impeachment, and the power to decide the outcome of a presidential election. Much of the reading consists of Supreme Court opinions that highlight the politics of constitutional development. 

Requirements: two short papers and a final exam

Grading: 30% for each paper, 40% for the final

Texts: Kommers, Finn, and Jacobsohn, AMERICAN CONSTITUTIONAL LAW (Vol. 1), 3rd. ed., another book TBA

a) No Prerequisites  

b) The focus of this course is on the ways in which the Constitution protects individual rights as it accommodates the often competing claims of groups, communities, and the state. While the emphasis is on the United States Supreme Court, the class will also look at how other constitutional polities address similar issues.  We examine rights under the Constitution as they have evolved and been defined through judicial interpretation during periods of crisis and normalcy.  Some of the topics to be considered include: equal protection under law, substantive and procedural due process, freedoms of speech and religion, and privacy. Under these rubrics are to be found such issues as affirmative action, capital punishment, hate speech, property rights, abortion, and gender discrimination. Much of the reading is of Supreme Court opinions that highlight the politics of constitutional development.  

c) Two papers, each 30% of the final grade; a final exam worth 40% of the grade.  

d) Two texts, one a Con Law casebook, the second a collection of constitutional stories

Gov 357M - CONSTITUTIONAL LAW: STRUCTURES OF POWER 

The focus of this course is on one of the most vital aspects of politics: interpreting and applying the nation's fundamental rules. We examine constitutional structures of power by exploring contests over authority from John Marshall and Thomas Jefferson to Barack Obama and the Tea Party of today. Some of the topics to be considered include: the powers of the federal and state governments, the executive's emergency powers, and the Supreme Court's authority to nullify the acts of other branches. Under these general headings are to be found such issues as the power to provide national health care, the power to regulate firearms, the power to establish an office of independent counsel, the power to overturn a judicial decision through congressional action, the power to deprive citizens of rights during wartime, the power to define the terms of impeachment, and the power to decide the outcome of a presidential election. Much of the reading consists of Supreme Court opinions that highlight the politics of constitutional development. 

Requirements: two short papers and a final exam

Grading: 30% for each paper, 40% for the final

Texts: Kommers, Finn, and Jacobsohn, AMERICAN CONSTITUTIONAL LAW (Vol. 1), 3rd. ed.

R. McCloskey, THE AMERICAN SUPREME COURT (5th ed.)

The focus of this course is on the ways in which the Constitution protects individual rights as it accommodates the often competing claims of groups, communities, and the state. While the emphasis is on the United States Supreme Court, the class will also look at how other constitutional polities address similar issues.  We examine rights under the Constitution as they have evolved and been defined through judicial interpretation during periods of crisis and normalcy.  Some of the topics to be considered include: equal protection under law, substantive and procedural due process, freedoms of speech and religion, and privacy. Under these rubrics are to be found such issues as affirmative action, capital punishment, hate speech, property rights, abortion, same sex marriage, the right to bear arms, and gender discrimination. Much of the reading is of Supreme Court opinions that highlight the politics of constitutional development and the debates and controversies of American political thought.

Requirements: two shorts papers (30% of grade each) and a final exam (40% of grade).

No prerequisites.

Texts: Donald P. Kommers, John E. Finn, and Gary J. Jacobsohn. eds., AMERICA CONSTITUTIONAL LAW: LIBERTY, COMMUNITY, AND THE BILL OF RIGHTS (Vol. 2, 3rd ed.); and one other book TBA.

The proliferation of new constitutions and the heightened activity surrounding recent fundamental re-structuring of polities have led to a renewed interest in the old subject of comparative constitutionalism.  This course will explore alternative traditions of constitutionalism, connecting them to the broader political cultures from which they have emerged.  It will examine the various shades of meaning underlying political values and moral theories that inform concepts -- for example, liberty, autonomy, equality, and community -- within various constitutional traditions.  It will seek to account for the similarities and differences within the constitutional ideas and arrangements in contrasting systems.  It will explore the role of constitutional courts in polities with varying conceptions of judicial review.  It will consider alternative approaches to the study of constitutional maintenance and change.  It will attempt to clarify the elusive concepts of constitutional identity and constitutional revolution.  And it will look closely at the ways in which foreign experience might illuminate and possibly enrich American constitutional understandings. 

Requirements: One short reflective paper (20% of grade) and one research paper (60% of grade)  Class participation (20% of grade).

No prerequisites.

Texts: TBA

Course Description

The focus of this course is on one of the most vital aspects of politics: interpreting and applying the nation's fundamental rules. While the emphasis is on the United States Supreme Court, the class will also look at how other constitutional polities address similar issues.  We examine constitutional structures of power by exploring contests over authority from John Marshall and Thomas Jefferson to Barack Obama and the Tea Party. Of major consideration: the powers of the federal and state governments, the executive's emergency powers, and the Supreme Court's authority to nullify the acts of other branches. Under these general headings are to be found such issues as the power to regulate firearms, the power to overturn a judicial decision through congressional action, the power to deprive citizens of rights during wartime, the power to define the terms of impeachment, the power to establish a national health care policy, and the power to decide the outcome of a presidential election. Much of the reading is of Supreme Court opinions that highlight the politics of constitutional development.  

Grading Policy

Course grades are based on two short papers, a final exam, and class participation.

Texts  

Kommers, Finn, and Jacobsohn, American Constitutional Law; Robert McCloskey, The American Supreme Court, Packet of articles and cases

Prerequisites

None (Some Con Law familiarity desirable)

Course Description

We will consider, within the American political context, what law has come to mean, and  the implications of this understanding (as well as alternative conceptions) for public policy, constitutional interpretation, and citizenship.  Much of the canon of American jurisprudence includes important works falling beyond the specific concerns of this course.  Thus we will have little to discuss regarding issues located in the various domains of private law.  The selection of readings and topics reflect the fact this is a course in a graduate program in Public Law.  The jurisprudential and philosophical issues that will preoccupy us are deeply implicated in the scholarship being done in the fields of judicial behavior, constitutional development, and comparative/ international law.  Our goal is to discover exactly why they lie at the core of the discipline of Public Law. 

Grading policy

There are two written assignments, the first is a short reflective piece (5 pages) and the second is a research paper (20-25 pages) to be submitted at the end of the semester.  A course grade will reflect performance on these papers (#1 – 20%, #2 – 60%) and on class participation (20%). 

Texts

Among the texts will be works by Cardozo, Holmes, Dworkin, Lincoln, Posner, Hart, and Fuller.

The focus of this course is on one of the most vital aspects of politics: interpreting and applying the nation's fundamental rules. We examine constitutional structures of power by exploring contests over authority from John Marshall and Thomas Jefferson to Barack Obama and Nancy Pelosi. Some of the topics to be considered include: the powers of the federal and state governments, the executive's emergency powers, and the Supreme Court's authority to nullify the acts of other branches. Under these general headings are to be found such issues as the power to regulate firearms, the power to require individuals to acquire health insurance, the power to establish an office of independent counsel, the power to overturn a judicial decision through congressional action, the power to deprive citizens of rights during wartime, the power to define the terms of impeachment, and the power to decide the outcome of a presidential election. Much of the reading consists of Supreme Court opinions that highlight the politics of constitutional development.  

 Requirements: two short papers and a final exam

Grading: 30% for each paper, 40% for the final

Texts: Kommers, Finn, and Jacobsohn, AMERICAN CONSTITUTIONAL LAW Vol. 1, (3rd ed.), another book TBA

The focus of this course is on one of the most vital aspects of politics: interpreting and applying the nation's fundamental rules. We examine constitutional structures of power by exploring contests over authority from John Marshall and Thomas Jefferson to Barack Obama and Nancy Pelosi. Some of the topics to be considered include: the powers of the federal and state governments, the executive's emergency powers, and the Supreme Court's authority to nullify the acts of other branches. Under these general headings are to be found such issues as the power to regulate firearms, the power to require individuals to acquire health insurance, the power to establish an office of independent counsel, the power to overturn a judicial decision through congressional action, the power to deprive citizens of rights during wartime, the power to define the terms of impeachment, and the power to decide the outcome of a presidential election. Much of the reading consists of Supreme Court opinions that highlight the politics of constitutional development.  

 Requirements: two short papers and a final exam

Grading: 30% for each paper, 40% for the final

Texts: Kommers, Finn, and Jacobsohn, AMERICAN CONSTITUTIONAL LAW Vol. 1, (3rd ed.), another book TBA

According to the legal theorist, Roscoe Pound, "Experience, which is no longer merely local, must be subjected to the scrutiny of reason and developed by reason, and reason, which in its very nature transcends locality, must be tested by experience.  The wider the experience, the better is the test.  Thus the science of law must increasingly be comparative.  Whether we are dreaming of a world law or thinking of the further development of our own law...the methods of the jurist must have a basis in comparison."  Written in 1957, Pound's point is much older than forty years; indeed the framers of the American Constitution proceeded in accordance with its insight, as their architectural design for constitution-making relied on comparative examples to supplement their Enlightenment faith in reason.  Yet the comparative method has over the years become increasingly marginalized as a tool of constitutional analysis.  This is especially the case in the United States, where the longevity and success of the Constitution have surely contributed to a discernible insularity (and perhaps arrogance) in scholarly and juristic awareness of alternative constitutional possibilities.  Yet, with the extraordinary regime changes that have occurred throughout the world over the last several decades, this appears to be changing.  The heightened activity surrounding recent fundamental re-structurings of polities has led to a renewed interest in the old subject of comparative constitutionalism.  Indeed, it is routine now regularly to encounter news items on constitutional design, amendment, and interpretation.  This course will explore alternative traditions of constitutionalism, connecting them to the broader political cultures from which they have emerged.  It will examine the various shades of meaning underlying political values and moral theories that inform concepts -- for example, liberty, autonomy, equality, and community -- within various constitutional traditions.  It will seek to account for the similarities and differences within the constitutional ideas and arrangements in contrasting systems.  It will explore the role of constitutional courts in polities with varying conceptions of judicial review and its significance.  It will consider alternative approaches to the study of constitutional maintenance and change.  It will attempt to clarify the elusive concept of constitutional identity.  And it will look closely at the ways in which foreign experience might illuminate and possibly enrich American constitutional understandings.  As that other famous comparative legal scholar, Tom Waits, has said (actually sung), “I never saw my hometown until I stayed away too long.”   

The focus of this course is on the ways in which the Constitution protects individual rights as it accommodates the often competing claims of groups, communities, and the state. While the emphasis is on the United States Supreme Court, the class will also look at how other constitutional polities address similar issues.  We examine rights under the Constitution as they have evolved and been defined through judicial interpretation during periods of crisis and normalcy.  Some of the topics to be considered include: equal protection under law, substantive and procedural due process, freedoms of speech and religion, and privacy. Under these rubrics are to be found such issues as affirmative action, capital punishment, hate speech, property rights, abortion, and gender discrimination. Much of the reading is of Supreme Court opinions that highlight the politics of constitutional development.

Course Description: The focus of this course is on one of the most vital aspects of politics: interpreting and applying the nation's fundamental rules. We examine constitutional structures of power by exploring contests over authority from John Marshall and Thomas Jefferson to Barack Obama and Nancy Pelosi. Some of the topics to be considered include: the powers of the federal and state governments, the executive's emergency powers, and the Supreme Court's authority to nullify the acts of other branches. Under these general headings are to be found such issues as the power to regulate firearms, the power to require individuals to acquire health insurance, the power to establish an office of independent counsel, the power to overturn a judicial decision through congressional action, the power to deprive citizens of rights during wartime, the power to define the terms of impeachment, and the power to decide the outcome of a presidential election. Much of the reading consists of Supreme Court opinions that highlight the politics of constitutional development.  
 
Grading Policy: 30% for each paper (2 papaers), 40% for the final

Textbooks: Kommers, Finn, and Jacobsohn, AMERICAN CONSTITUTIONAL LAW Vol. 1, (3rd ed.), another book TBA

Description: This course will consider, within the American political context, what law has come to mean and  the implications of this definition (as well as alternative conceptions) for public policy, constitutional interpretation, and citizenship.  We will study the main schools of jurisprudential thought in the United States, including positivism, natural law, sociological jurisprudence, and critical legal studies.  Students will study the works of, among others, Holmes, Cardozo, Hart, Fuller, Dworkin, Posner, and Lincoln.

Grading Policy/Requirements: two papers, one short reflective piece, one research paper.

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