Course Description

This course is an introduction to United States constitutional law and its role as a source of principles for addressing social problems. Issues such as economic regulation, fair procedure, religious freedom, free speech, privacy, federalism, judicial review, and separation of powers will be examined. Attention will also be given to the social functions of the Supreme Court, the interplay of political-economic climate and Supreme Court decision making, the Supreme Court as a political institution, and the vagaries of constitutional interpretation.

Constitutional law is concerned with the organization of the relationship between the government and the individual, and the potential for unfair treatment at the hands of the government is the basis for myriad constitutional law claims. Consequently, issues of diversity, social and economic justice, and ethics and values are naturally integrated within the course, and the implications of these claims for racial, ethnic, sexual, and political minorities are examined in virtually every topic below. These issues also will be explored in our discussions about the Supreme Court as an institution.

Course Objectives

The course’s learning objectives are designed to enable students to:

1. employ methods of analysis that illustrate the decision-making approaches used by the Supreme Court;
2. assess how the Supreme Court adheres to, or departs from, the doctrine of stare decisis and to evaluate the consequences for the development of constitutional law doctrine;
3. analyze Supreme Court decisions in a way that reveals the Court’s appraisal of its functions and scope of authority; and
4. differentiate between arguments regarding the Supreme Court as the sole arbiter of the meaning of the United States Constitution.

David Kairys, With Liberty and Justice for Some (New York, NY: New Press, 1990)

Robert G. McCloskey, The Supreme Court, 2^nd edition, (Chicago, Ill: U. of Chicago, 1994)

David M. O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997)

Recommended Texts

Derrick Bell, Race, Racism and American Law

Stephen L. Carter, The Culture of Disbelief, (New York, NY: Anchor Books, 1993)

Leon Higgonbotham, In theMatter of Color

David Kairys, With Liberty and Justice for Some (New York, NY: New Press, 1990)

Susan Lawrence, The Poor in Court (Princeton, NJ: Princeton U. Press, 1990)

Bernard Schwartz, Decision: How the Supreme Court Decides Cases, (New York: Oxford Press, 1996)

Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court, (Cambridge: Harvard University Press, 1999)

Course Outline

Jan 24 Introduction

Jan 31 A framework for understanding constitutional decision making: approaches to

Lochner v. New York

West Coast Hotel Co. v. Parrish

nationalization of the Bill of Rights: selectively applying Bill of Rights to states

Feb 21 The "Due Process Revolution" -- rise, demise, revival

County of Sacramento v. Lewis

Feb 28 Freedom of expression and association:

Gitlow v. People of the State of New York

Dennis v. United States

Brandenberg v. Ohio

Rust v. Sullivan

Mar 7 Freedom of expression: obscenity, pornography and offensive speech

Mar 21 Libel

Gertz v. Robert Welch, Inc.

Masson v. New Yorker Magazine

Cox Broadcasting v. Cohn

Mar 28 Symbolic speech and speech-plus-conduct and freedom of association

In Re Gault

Arizona v. Fulminante

Winthrow v. Williams

Apr 18 Right to counsel and other procedural guarantees; and indigents and the criminal

Romer v. Evans

Shapiro v. Thompson

San Antonio School District v Rodriguez

Plyer v. Doe

Heller v. Doe

May 4 Critique of the conservative Supreme Court decision making process

Collectively, the following assignments are designed to provide in-depth discussion of the cases.

This approach will enable us to dissect the doctrinal coherence of areas of law and thereby reveal the factors that contributed to the Court’s decision. From this will emerge opportunities to evaluate the implications for both doctrinal and case law development. Moreover, this approach should maximize opportunities to weigh in on the role of the Court as a political and social institution.

1. Class participation: The class will be structured as a seminar, a move that places a premium on active participation. Given the amount of attention we will devote to doctrinal analysis in relation to a particular area of constitutional law, unreserved sharing of perspectives will enhance the depth of our understanding of the concepts.
2. Each of you will assume responsibility for "briefing" several judicial decisions throughout the course, according to a timetable that I will distribute to you. As part of this responsibility, you will lead the class through the questions posed in relation to the case, as well as identify any questions and issues you deem important.
3. Needless to say, attendance is expected, and I should be given notice of your intention to be absent.
4. A written assignment, the details of which will be announced in class.