POL 336 American Constitutional Law II (Spring 2020)

Welcome to the course! POL 336 is a course for Politics majors, for students minoring in law, and for any other student interest in civil liberties and the legal process. Your weekly class assignments will be listed here, as well as any other information and readings that are relevant to the course. Check here every weekend for a definitive statement of the assignment for the following Wednesday class.


For the Class of Wednesday, January 29th:

The class discussion was good on Wednesday. We will continue to read and brief cases, but we will now focus almost exclusively on Supreme Court opinions regarding civil liberties issues. To establish the foundation for these opinions, we will start with some textbook commentary on the Bill of Rights and the “Incorporation Doctrine” in the Rossum and Tarr casebook, American Constitutional Law, vol II (henceforth abbreviated here as “R&T”). A copy of the casebook is in Reinsch library on “library reserve.”

Please read chapter 3 of R&T, up to page 52, and the following cases, one of which is in the casebook:

·         Barron v. Baltimore

·         The Civil Rights Cases

·         Gitlow v. New York

For each of the three cases, on a separate piece of paper to be handed in, identify the legal issue presented, the holding of the court, and the rule(s) that the court relied upon for its holding.


For the Class of Wednesday, January 22d:

I gave out a lot of information about the litigation process in class. I do not expect you to master the material after one class; we will continue to work on the basic skills throughout the semester.

As I indicated, the first skill is the ability to analyze and brief cases, or court opinions. This skill underlies everything a lawyer does and most of what a law student does in law school.

For the cases that I gave out in the packet—Hopkins, Mount Olive, Ex parte McCardle, Schenck—I want you to read these short opinions and try to figure out just what the two parties disagreed about in each case. This fundamental legal disagreement, which the court (the judge) must resolve, is the “issue” or “question” in the case. The judge’s resolution of the issue (or answer to the question) is called the “holding.” And much of the remaining opinion is dedicated to providing a rationale, or supporting reasons, for the holding. Thus, for each case type up a “brief” consisting of three sentences:

1.       the legal issue/question/disagreement that the parties have brought before the court;

2.       the holding or resolution that the court arrived at; and,

3.       the main reason or rule that the court relied upon to support its holding.

Be as specific as you can. Not every opinion states these points clearly and unambiguously (as much as lawyers would like the courts to do so). For example, the court, Judge Welles, in the Baker v. Higgins opinion that we read in class, stated pretty clearly that the legal issue/question or disagreement was whether the buyer of the bricks (Higgins, the defendant) had to pay the seller (Baker, the plaintiff, who was suing Higgins to get payment for 21,000 bricks) for each partial delivery of bricks when the deliveries were made or had to pay only when all 75,000 bricks had been delivered. Judge Welles did not state this issue as clearly as I just did, but I (and you) must often infer the issue from the whole opinion.

Judge Welles did state clearly and simply the holding—his answer or resolution to the legal issue/question that I just indicated: the buyer (Higgins) was legally obligated only to pay the contract price for the bricks only after all of the bricks were delivered.

The rule or principle that Judge Welles relied upon in this case is not clearly stated. He based his holding on the legal principle that where a contract is deemed to be “entire,” then full performance by one party, the buyer, is only required after full performance, or the present offer of full performance, by the other party. Don’t worry if you have trouble figuring out the rule in some of the cases that we will study this semester.

Thus, your “brief” for Baker v. Higgins should say something like:

Issue: whether the defendant buyer was legally obligated to pay for each partial shipment of bricks as they were delivered.

Holding: the defendant was not obligated to pay for each partial shipment of bricks.

Rule: in a sales contract deemed to be “entire,” payment for the goods is required only after full performance—complete delivery of all of the purchased goods—by the seller.


Type up similar briefs for the four remaining cases:

Hopkins v. State

Mount Olive Primitive Baptist Church v. Patrick et al.

Ex parte McCardle

Schenck v. United States

Do the best you can for each case. To pass the assignment, simply make a good faith effort for all four cases and give me your case briefs in class (make a copy for yourself, too.)

Using LEXIS or Nexis Uni to find and research cases

1.       Go to marymount.edu, click on “Quick Links.”

2.       Click on “Library and Learning Services.”

3.       Under the “Quick Links” menu on the far left, click on “Articles and Databases.” “Databases by Subject” should appear.

4.       From the lists of subjects, click on “Legal” (far right list). The “Legal Studies” list should appear.

5.       From the “Legal Studies” list, click on “Nexis Uni.”

6.       From the four headings (“All,” “News,” “Company and Financial,” “Legal”), click on “Legal.”

7.       for present purposes, click on “Cases,” then on “US Cases.”

8.       Enter citation or name (style/title) of the case you want to find, and select the appropriate “field” from the “All Fields” drop-down menu box.

For the Class of Wednesday, January 15th:

For the first class, we will go over the basic elements and skills necessary to forming persuasive legal arguments. The standard or form that we will use as a framework is litigation because in the common law system litigation is the ultimate source of legal authority and the meaning of legal norms. We will eventually prepare moot-court type legal arguments and the points-and-authorities briefs that they often require.

In the first class, we will review the following points:

·         General format of a hypothetical or fact-pattern question

·         Researching and finding cases—LEXIS searches at Marymount

·         Citing cases and statutes

·         Briefing and analyzing cases

·         Using precedents and “distinguishing” precedents

·         Constructing a simple points-and-authorities brief


I will also hand out several short cases and use one or two (time permitting) as examples for analysis and briefing

(Baker, Hopkins, Mount Olive, Ex parte McCardle, Schenck)

For the class of January 22, you will have to brief several or all of these cases and we will go over the briefs.