Constitutional Law PSCI 4241

University of Colorado-Boulder

Professor Vanessa A. Baird

Office Hours: Tuesday 2-5; Wednesdays 10-12

(also by appointment)

Syllabus, pdf

I often will keep office hours open for other students to listen; if you would like to speak to me privately, please let me know.

Course description: pedagogical goals

This class is an introduction to constitutional methods. We will be very careful in our thinking and how different kinds of arguments require different kinds of evidence. We are not memorizing a ton of Supreme Court cases, all of which you would forget anyway, by the time you get to law school, if that is your goal.

We will learn how to think causally. There are two kinds of causal thinking in legal thought. One is causal process thinking. For example, someone spilled oil on the grocery floor, which caused someone to fall. We will not be working with that kind of argument. Instead, we will be thinking about casual thinking in a way that leads to hypothesis tests that give us some general sense of how certain attributes of time, places, and people lead to other attributes of time, places, and people and how this tells us something general about principles of how the politics of courts work. Specifically, we will look into the mechanisms by which courts protect minorities from the overreaches of government power.

We will learn how to make an argument based on interpreting the meaning of the words in the text (in this case, we are talking about "case law" or previous decisions of the Supreme Court). The most important part of legal thinking involves interpretation: making arguments about what the specific words in Supreme Court cases mean; sometimes the most important word in a Supreme Court case is “and.” Your job is to determine what the law is, from the meaning of the words. So, your job here is not to be a judge, but instead, a lawyer, working from past Supreme Court cases to come to a conclusion, specifically, about whether the Blaine Amendments are constitutional, given exercise protections. We will read a professional article written by a law professor and your job is to use his analysis to come to some conclusion about whether you buy his argument. There is no right answer to this question, as is usually the case with legal interpretations. But some interpretations are more wrong than others.

We will also learn how to make normative arguments (also called ethical or philosophical arguments). You will learn how to make careful normative arguments from first principles. So, your final project will be a paper in which you take a specific proposition and argue that it can be defended with a nonobvious first principle from philosophy. There may be legal interpretation and causal thinking in this paper.

Learning goals in four parts

Week 1-3 Think logically, learn appropriate use evidence for different types of arguments, be able to identify logical fallacies, learn the basic facts of our constitutional and judicial system.

Week 4-7 Think like a political scientist: explain the causal factors for Supreme Court decisions and other judicial outcomes to reach a descriptive inference: can the Supreme Court protect minorities?

Week 8-12 Think like a lawyer: interpret case law, and prepare to argue a case before the Supreme Court: are the Blaine Amendments constitutional?

Week 13-15 Think like a Supreme Court justice: make normative legal judgments, and prepare to write a philosophical defense of a particular legal standard.

Grades and assignments

Grading scale

Points	Grade
18,200	A
17,600	A-
17,000	B+
16,200	B
15,600	B-
15,000	C+
14,000	C
12,000	D

To receive an A in the class, you must get an A on everything, OR do some extra credit assignments.

Required assignments

Assignments	Total points possible
Two exams, 3000 points each	6,000
Four quizzes, 1000 points each	4,000
Six critical thinking assignments, 500 points each	3,000
Final essay	3,000
Presentation of final essay, during final exam period	1,000
Participation	3,000
Total	20,000

Extra credit

Assignments	Total points possible
Additional critical thinking assignments	3,000
Group work	3,000
Participation in mock oral argument	2,000
Total	8,000

Notes

There are eleven very short “Critical thinking” assignments; 6 required (others are for extra credit). Particularly thoughtful ones can get up to 1000 points. No credit if late or not a good faith effort.

15 weeks of group work, for 125 points per week, which is 1875 points, but this also includes a bonus of 1125 points for participation in at least 12 weeks, for a total of 3000 points extra credit.

Assignment schedule

Quizzes and exams are all on Canvas

Quiz 1 due Sep 10, at 5 pm

Quiz 2 due Oct 1, at 5 pm

Quiz 3 due Nov 5, at 5 pm

Quiz 4 due Dec 3, at 5 pm

Exams have two parts: a multiple-choice portion and an “essay” portion

Exam 1 (both portions) due Oct 8, at 5 pm

Exam 2 (both portions) due Nov 12, at 5 pm

Mock oral argument Nov 4

We will be having a mock oral argument on Nov 4. You can be a lawyer or a Supreme Court justice. (Supreme Court justices are nominated by each group).

Final exam period: Final paper presentations

For weeks when they are available, thinking assignments are due Thursdays at 11 am

You must document the previous weeks’ group work in Canvas by Sunday night

Course Outline

Summary of Part I

Part I introduces the system of logic: 1) which kinds of evidence is appropriate for which kinds of arguments and 2) logical fallacies. And it introduces some knowledge about the constitutional and judicial system that is required to understand the rest of the course.

Week 1 Arguments, evidence: “Wait, what?”

Week 2 The logic of constitutionalism

Week 3 Assessments

Summary of Part II

Part II deals with the theory of constitutional law and judicial power. We will deal with the following questions: what enables human beings to have a constitution (how this is different from a non-constitutional government) and support a constitutional order? What allows us to maintain a rule of law that dictates how political institutions operate? This part of the class will be focused on making and understanding causal arguments to reach a final descriptive inference about whether the Supreme Court can protect minorities.

Rights and liberties are, in one manner of thinking, inherently anti-democratic. When the Supreme Court declares a right or liberty, by definition, it limits some majority (e.g. a state legislature, elected sheriff or prosecutor, city council, Congress, the President). The counter to that characterization is that majorities can be anti-democratic, and the constitution (in the form of the U.S. Supreme Court) needs to be there to curb those instincts. Thus, constitutional democracies form the end of history (Fukuyama 1998).

All that being said, care should probably be taken when we limit majorities. The constitution ought to give guidelines. It does a poor job of that. Here is some evidence: The Ninth Amendment.

The SC sometimes construes to affirm. When it does, there is sometimes backlash. The SC has no police, no budget, as Andrew Jackson’s despicable temper tantrum revealed, in one of U.S. history’s darkest moments. (Links to an external site.)

The question we are getting at is: what is the nature of judicial power? When does it work to protect minorities and what are the limits to those powers?

Week 4 Establishing counter-majoritarian judicial power

Week 5 Testing judicial power: minorities and limits of majority power

Week 6 Other forms of judicial power

Week 7 Assessments

Summary of Part III: a case study on religious liberty

Part III is the case study on the Blaine Amendments, which are a nice vehicle through which to understand the conflict between exercise protections and protections against the establishment of religion. This is a way to strengthen your capacity to make legal arguments, thinking about the best rebuttals to arguments. This is a difficult (and arcane) area of the law. We will read a law professor’s perspectives and think about how best to defend or reject his arguments. We will pay careful attention to what is likely a verifiable interpretation that is close to a fact. For example, disallowing a person to say a Christian or Muslim prayer is an obvious violation of free exercise. A state’s decision not to pay for a blind man to become a Baptist minister is not an obvious violation. This part of the class prepares you to make an argument in front of the Supreme Court.

The Blaine Amendments are state constitutional provisions (not all states have them; Colorado does) that limit money for religious purposes.

We will note that there are two provisions regarding religious freedoms in the First Amendment: exercise and establishment. Exercise is what the government cannot prevent you from doing (this is often about deviant behavior: animal sacrifices, peyote, etc.). Establishment law refers to the limits on what the government can do on the basis of supporting religion (this is often about Christmas trees, and state funding for religious schools).

These provisions are at times at odds: can the state provide funding that is available generally to people with disabilities, to a blind person, who wants to become a minister? More to the point, can the state Supreme Court use the state Blaines to prevent such funding, or does this violate the U.S. Constitution and free exercise?

Week 9 Religious Exercise

Week 10 Establishment

Week 11 The Blaine Amendments and the non-persecution principle

Week 12 Assessments

Summary of Part IV: First amendment, speech, campaign finance

Part IV is a case study on speech and campaign finance reform, which is a good way to explore how to construct a carefully written normative essay. We will be looking at how to carefully construct normative arguments that are non-obvious and that rely on nonobvious first principles. This part of the class teaches you how to be a Supreme Court justice.

The Supreme Court refused to allow the McCain-Feinstein law limiting campaign finance to stand, on the basis of “money as speech.” If you were the fifth vote on a case about the appropriate limits of money in politics, how would you characterize the appropriate limits, given normative considerations (first principles), the case-law of speech, and campaign finance? You will write the opinion of the Court.

Week 13 Making normative arguments, constitutional speech protections

Week 14 Campaign finance

Week 15 Assessments

Final exam time: presentations on papers and projects

Rules and Regulations

Classroom Behavior

Both students and faculty are responsible for maintaining an appropriate learning environment in all instructional settings, whether in person, remote or online. Those who fail to adhere to such behavioral standards may be subject to discipline. Professional courtesy and sensitivity are especially important with respect to individuals and topics dealing with race, color, national origin, sex, pregnancy, age, disability, creed, religion, sexual orientation, gender identity, gender expression, veteran status, political affiliation or political philosophy. For more information, see the policies on classroom behavior and the Student Conduct & Conflict Resolution policies.

Requirements for COVID-19

As a matter of public health and safety due to the pandemic, all members of the CU Boulder community and all visitors to campus must follow university, department and building requirements and all public health orders in place to reduce the risk of spreading infectious disease. Students who fail to adhere to these requirements will be asked to leave class, and students who do not leave class when asked or who refuse to comply with these requirements will be referred to Student Conduct and Conflict Resolution. For more information, see the policy on classroom behavior and the Student Code of Conduct. If you require accommodation because a disability prevents you from fulfilling these safety measures, please follow the steps in the “Accommodation for Disabilities” statement on this syllabus.

As of Aug. 13, 2021, CU Boulder has returned to requiring masks in classrooms and laboratories regardless of vaccination status. This requirement is a temporary precaution during the delta surge to supplement CU Boulder’s COVID-19 vaccine requirement. Exemptions include individuals who cannot medically tolerate a face covering, as well as those who are hearing-impaired or otherwise disabled or who are communicating with someone who is hearing-impaired or otherwise disabled and where the ability to see the mouth is essential to communication. If you qualify for a mask-related accommodation, please follow the steps in the “Accommodation for Disabilities” statement on this syllabus. In addition, vaccinated instructional faculty who are engaged in an indoor instructional activity and are separated by at least 6 feet from the nearest person are exempt from wearing masks if they so choose.

Students who have tested positive for COVID-19, have symptoms of COVID-19, or have had close contact with someone who has tested positive for or had symptoms of COVID-19 must stay home. In this class, if you are sick or quarantined, I do not require "doctor's notes" or quarantine verifications for classes missed due to illness or quarantine. Let me know if you are sick or have other extenuating circumstances so that we can make alternate arrangements.

Accommodation for Disabilities

If you qualify for accommodations because of a disability, please submit your accommodation letter from Disability Services to your faculty member in a timely manner so that your needs can be addressed. Disability Services determines accommodations based on documented disabilities in the academic environment. Information on requesting accommodations is located on the Disability Services website. Contact Disability Services at 303-492-8671 or dsinfo@colorado.edu for further assistance. If you have a temporary medical condition, see Temporary Medical Conditions on the Disability Services website.

Preferred Student Names and Pronouns

CU Boulder recognizes that students' legal information doesn't always align with how they identify. Students may update their preferred names and pronouns via the student portal; those preferred names and pronouns are listed on instructors' class rosters. In the absence of such updates, the name that appears on the class roster is the student's legal name.

Honor Code

All students enrolled in a University of Colorado Boulder course are responsible for knowing and adhering to the Honor Code academic integrity policy. Violations of the Honor Code may include, but are not limited to: plagiarism, cheating, fabrication, lying, bribery, threat, unauthorized access to academic materials, clicker fraud, submitting the same or similar work in more than one course without permission from all course instructors involved, and aiding academic dishonesty. All incidents of academic misconduct will be reported to the Honor Code (honor@colorado.edu); 303-492-5550). Students found responsible for violating the academic integrity policy will be subject to nonacademic sanctions from the Honor Code as well as academic sanctions from the faculty member. Additional information regarding the Honor Code academic integrity policy can be found on the Honor Code website.

Sexual Misconduct, Discrimination, Harassment and/or Related Retaliation

The University of Colorado Boulder (CU Boulder) is committed to fostering an inclusive and welcoming learning, working, and living environment. CU Boulder will not tolerate acts of sexual misconduct (harassment, exploitation, and assault), intimate partner violence (dating or domestic violence), stalking, or protected-class discrimination or harassment by or against members of our community. Individuals who believe they have been subject to misconduct or retaliatory actions for reporting a concern should contact the Office of Institutional Equity and Compliance (OIEC) at 303-492-2127 or email cureport@colorado.edu. Information about OIEC, university policies, reporting options, and the campus resources can be found on the OIEC website.

Please know that faculty and graduate instructors have a responsibility to inform OIEC when made aware of incidents of sexual misconduct, dating and domestic violence, stalking, discrimination, harassment and/or related retaliation, to ensure that individuals impacted receive information about their rights, support resources, and reporting options.

Religious Holidays

Campus policy regarding religious observances requires that faculty make every effort to deal reasonably and fairly with all students who, because of religious obligations, have conflicts with scheduled exams, assignments or required attendance. In this class, let me know and we can make alternative arrangements.

See the campus policy regarding religious observances for full details.