Constitutional Law. Spring Nelson Tebbe Office (o) (m)

Transcription

1 Constitutional Law Spring 2013 Nelson Tebbe Office (o) (m) Meeting Times and Locations. Tuesdays 9:30 10:55 Thursdays 9:30 10:55 Fridays 9:30 10:55 Regular meetings will be in Room 501. Note that we will start at 9:30, not 9 this is a change from the registrar s posted schedule. Note also that there are several exceptions to this schedule because I have speaking engagemes out of town see the syllabus below for the dates of canceled es and makeup sessions. Office Hours. Feel free to stop by at any time or send me an for an appoime. Course Requiremes. Your grade for the will be based on your performance on a final examination and possibly on your participation in the room. I will rely largely on the Socratic method, meaning that I will call on studes and ask questions about the material. Every stude is responsible for being able to answer and participate every day. If you are not prepared, inform me in advance, either by sending an or by letting me know in person before begins. Try to do this only twice per term, unless circumstances are extenuating. Classroom participation is measured by preparedness when called on and by willingness to volueer thoughtful reflections on the assigned material. Success comes from sincere effort and thorough preparation, not from being correct. At the end of the term, I will improve a significa number of final grades by one increme because of strong participation

2 Required Reading. BREST, LEVINSON ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING (5 TH ED., 2006). BREST, LEVINSON ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING 2012 SUPPLEMENT. Materials posted on. Recommended Reading. Supplemeary texts are not ideal the law is articulated in the cases, not in restatemes. If you must use a treatise, limit yourself to this one: CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES (4 th ed. 2011). is a web-based course manageme system. Please register as soon as possible. Several of the required readings can be found only on. I will post this syllabus on and revise it from time to time. I will notify you in, but please also check the on-line syllabus periodically. The official version of the syllabus will be the one posted on. You are encouraged to use the discussion board to communicate about the course and about course-related topics. I will read these posts and respond from time to time. Participation cous toward participation and can enhance your grade. Look for the forum called Class Discussion Spring

3 Syllabus. In the chart below, Casebook refers to the text by Brest, Levinson, et al., and Suppleme refers to the accompanying soft-cover suppleme by the same authors. Note cases that are named in those columns may be focused on in. refers to materials posted on the Blackboard website. All materials, including those posted on, are required unless marked optional below. N.B.: Be wary of odd pagination some cells are ierrupted by a page break. 1/10 & 1/11 no 1/15 I. Iroduction 1. What Is a Constitution? 1/17 II. Structure of Governme A. The Court 2. Constitutional Ierpretation 1/18 3. Judicial Review 1/22 Time change: 4-530pm, moot court room 4. a) The Court s Authority to Ierpret the Unwritten Constitution; b) Limits on the Court s Power The Constitution of the United States (1-15); Iroduction (19-26) McCulloch v. Maryland Part I (38-51); McCulloch Part II (67-72) Preside Jackson s Veto Message (74-77); Marbury v. Madison ( ) a) Fletcher v. Peck and Note (140-46); Note on natural law and vested rights (146-48); Calder v. Bull and Notes (149-51); b) Limits on the Court s Power: Jurisdiction-Strippin g, Standing, and Political Philip Bobbitt, The Modalities of Constitutional Argume Alexander Bickel, The Least Dangerous Branch (1-23) (optional) - 3 -

4 (887-92) 1/ pm Room 601 makeup 1/ am Room 401 makeup 1/25 no B. Congress 5. Regulation of the Ierstate Economy: The Commerce Clause in the Early Republic and Substaive Due Process in the Late 19 th Ceury 6. The Commerce Clause in the Lochner Era Gibbons v. Ogden ( ); Note on substaive due process (412-15); Lochner v. New York (417-22) Note (435-37); Champion v. Ames (437-41); Hammer v. Dagenhart and the first two Notes pay particular atteion to E.C. Knight, Carter Coal, and Schechter Poultry (441-49) 1/29 7. The New Deal Note ( ); Note and West Coast Hotel v. Parrish (510-13); Note 4 on Modern Economic Substaive Due Process (518-20); Jones & Laughlin (549-50); Darby (551-53); Wickard v. Filburn and Note (553-56); Note on Ackerman Bruce Ackerman, We The People: Foundations (excerpt) (optional) - 4 -

5 (556-58) 1/ pm Room 603 N.B. time and room change 8. Modern Commerce Clause Doctrine 2/1 9. State Regulation of Ierstate Commerce the Dorma Commerce Clause 2/5 10. Affirmative Limits on Congressional Regulation of State Governmes t he Teh Amendme 2/7 11. Congress s Power to Tax and Spend Civil Rights Legislation: Heart of Atlaa and Katzenbach (558-62); Lopez majority (601-04) and Breyer disse (614-19); Note on Morrison and Raich (623-27) Notes on Pike, City of Philadelphia, and the market participa exception (730-34) Note on National League of Cities v. Usery (649-53); Garcia majority (653-55); New York v. U.S. majority (674-85); Priz v. U.S. majority (693-97); Note 7 on Alden and commandeering a state judiciary (705-08) (optional) Notes, especially on Bailey and Butler (449-56); Notes on the New Deal cases, including Steward Machine Co. Comstock and the Necessary and Proper Clause (95-98) West Lynn Creamery, Inc. v. Healy (edited); Kassel v. Consolidated Freightways Corp. (edited) - 5 -

6 (564-70); Note on South Dakota v. Dole (627-29) 2/8 12. The Health Care Cases 2/ am Room 401 makeup C. The Preside 13. The Prosecution Power 2/ The Appoime Power the Preside and the Administrative State 2/ The Veto Power 2/ Presideial Power Over War United States v. Cox majority (736-39), Wisdom concurrence (742-48); United States v. Nixon (749-56) [Read in order of bold numbers] 2. Morrison v. Olson majority (773-78) INS v. Chadha ( ) and Note 9 on Clion v. City of New York (817-19) Youngstown (823-35); Note 8 and 9 on the NFIB v. Sibelius: C.J. Roberts opinion (99-123), Ginsburg opinion Parts I-II, V (123-35, ); disse Parts II, IV (149-59) 3. Free Eerprise Bd. v. PCAOB (181-88) Note on the Libya ierveio 1. Note on Myers v. United States and Humphry s Executor v. United States Feldman, Whose War Powers? - 6 -

7 War Powers n (189-98) Resolution (838-39); Note 11 on the AUMFs (840-41) 2/ Executive Deteion 2/ Military Tribunals 2/26 II. Individual Rights A. Equality and the Constitution 19. Slavery and the Original Constitution 2/ Reconstruction and the Fourteeh Amendme Hamdi v. Rumsfeld majority (841-51); Note on Rumsfeld v. Padilla (863-64); Notes 1-5 (864-67); Note 8 on Guaanamo and Rasul v. Bush (868-71) [Please read in order indicated by numbers in bold:] 1. Iroduction and Ex Parte Quirin (871-74); 3. Note on torture and presideial power (878-81) Dred Scott ( ); Frederick Douglass, The Constitution of the United States: Is it Pro-Slavery or Ai-Slavery? (253-57) Iroduction (301-14); Note and The Slaughterhouse Cases (majority and Field disse) (319-28); Note and Plessy v. 2. Hamdan v. Rumsfeld majority (226-36), skim the disse (242-49); Note on the MCA (253-56) Note on Boumediene v. Bush - 7 -

8 Ferguson (357-65) 3/1 21. Brown Note and Brown v. Board of Educ. ( ); The Southern Manifesto (902-04); Brown and constitutional ierpretation (904-13, ); Note on the significance of Brown (925-26) 3/5 22. Brown II and Implemeation 3/ a m Room 401 makeup 3/7 & 3/8 no es 23. Affirmative Attempts to Diversify Schools 3/ Rational Basis Review 3/ Strict Scrutiny for Notes on Brown II, Griffin, Green, Swann, Keyes, Milliken, Milliken II (928-43) [Please read in order of bold numbers:] 1. Williamson v. Lee Optical Co. (520-22); 3. City of Cleburne v. Cleburne Living Ceer ( ) Korematsu v. United States through Pares Involved Roberts opinion (267-76); Kennedy concurren ce (286-93) Ely, Democracy and Distrust (edited) (optional) 2. NYCTA v. Beazer (edited) (4pp.)

9 Racial Classifications 3/ Disparate Impact 3/ a m Room 401 makeup 27. Affirmative Action I 3/ Affirmative Action II Murphy disse (966-73); Iroduction and Loving v. Virginia (956-63) Iroduction and Note on Yick Wo ( ); Washington v. Davis and Note on Feeney ( ); Note on unconscious racism ( ) (optional); Note on Arlington Heights ( ); Note on Palmer v. Thompson (1041) Iroduction and Bakke ( ); Note on early cases, especially Fullilove ( ); Note on Adarand ( ) Grutter v. Bollinger majority and Rehnquist disse ( ); Gratz majority (1142); Note on Shaw and majority-minority districting ( ) 3/ Gender Note on Craig v. Boren, Weinberger, Ricci v. DeStefano (311-15) Rosen, Moving On (profile of Justice Thomas) (optional) Fisher v. Texas (5 th Cir. 2011) (edited) Toobin, Heavyweight What is the rule for laws that have only a disparate racial effect? Is that rule effective? What about for laws that are biased in purpose, but not effect? What happens if the motives are mixed? What are the justifications for applying strict scrutiny to affirmative action policies? What gov t purposes should or do cou as compelling? What is the future of affirmative action in the Supreme Court? Is this assessme specific to higher education? What is stereotyping? - 9 -

10 and stereotyping ( ); U.S. v. Virginia (The VMI Case) majority ( ) 3/22 no 4/2 B. Ierlude on the Bill of Rights and Incorporation 30. A Case Study: The Second Amendme 4/4 C. Liberty and the Constitution 31. Iroduction to Fundameal Rights Note on the Bill of Rights and incorporation (486-93) Iroduction and Griswold v. Connecticut ( ); Note on Eisenstadt and Zablocki ( ) District of Columbia v. Heller majority (11-26); McDonald v. City of Chicago Parts II-III (59-66) (optional) Does discrimination on the level of gender deserve a differe level of scrutiny than that on the basis of race? How does iermediate scrutiny work? What is the relationship between social movemes and constitutional law and what should it be? How is the Bill of Rights distinct? When and how does it apply against the states? What is the test for the 2d A. and how much gun regulation does it outlaw? Is all of the U.S. Constitution written down? How does this law relate to Lochner? To the early 19 th c. cases about vested rights? Is it appropriate

11 4/5 32. Abortion Iroduction and Roe v. Wade ( ); Notes 1-5 on Post-Roe decisions ( ) 4/9 33. Late-Term Abortion 4/ pm Room 603 N.B. time and room 34. Sexual Orieation Casey joi opinion ( , ) Bowers v. Hardwick majority ( ) (optional); Lawrence v. Texas ( ) Gonzales v. Carhart majority (319-28) for a court to find such rights? What modalities of constitutional ierpretation support Griswold? Is there a right to marry? What exactly are the reasons the Court invokes to protect the right to terminate a pregnancy? Are they convincing? Should the gov t be able to defund constitutional rights? What is curre law for the right to terminate a pregnancy? How does precede work in this area? What is the future of gov t regulation of reproductive decisions? What exactly is the right recognized in Lawrence? What level of scrutiny applies going forward?

12 change 4/ Sexual Orieation and Equal Protection 4/ Same-Sex Marriage 4/ Liberty, Equality, and Class The Fundameal Ierests Branch of Equal Protection Romer v. Evans ( ) Goodridge v. Departme of Public Health majority ( ), Spina disse ( ); Notes ( ) Note on Griffin, Gideon, and Douglas ( ); Harper v. Virginia Bd. of Elections ( ); Dandridge v. Williams ( ); Letter from Attorney General Holder to Congress on DOMA; Winsor v. US (2d Cir. 2012) (edited) Perry v. Brown (9th Cir. 2012) (edited) Tebbe & Widiss, Equal Access and the Right to Marry (optional) Is it legitimate for the governme to prohibit activity purely on moral grounds, where no injury to third parties is possible? What level of scrutiny should apply to ifications on the basis of sexual orieation? Does it matter, practically, what level of scrutiny is applied? What is the most promising theory for advocates of same-sex marriage? Is there a right to marry? What are the federalism implications, if any, of a SCOTUS ruling on the issue? Is there such a thing as hybrid rights analysis? Does it capture anything analytically distinct, or is just a historical

13 Shapiro v. Thompson ( ) 4/19 VII. General Themes and Conclusion 38. State Action 4/22 Makeup session Rm a.m. The Civil Rights Cases majority (373-80), (disse optional); Note on Shelley v. Kraemer (383); DeShaney ( ); Note on Shelley, Rendell-Baker, and Blum ( ) 39. Standing Lujan v. Defenders of Wildlife (edited); Perry v. Brown (9 th Cir. 2012) (edited for standing); Perry v. Brown, Responde s Brief (edited); Perry v. Brown Oral Argume Transcript (edited for peculiarity? Should we protect against discrimination on the basis of wealth? What exactly distinguishes The Civil Rights Cases and Shelley v. Kraemer? Is the distinction between state action and inaction a principled one? What are the alternatives to the state action doctrine and how would they work? What is the basic test for standing? Where is it rooted in the text of the Constitution? What ierests does it serve? What is the likely outcome of the standing question in Perry v. Brown and what should it be?

14 4/ Unconstitutional Conditions 4/ Congress s Power to Enforce the Reconstruction Amendmes 4/ Review session Iroduction, Maher v. Roe, and Harris v. McRae ( ); Reagan v. TWR ( ); FCC v. League of Women Voters ( ) Iroduction (570-72) (optional); Katzenbach v. Morgan (576-82); City of Boerne v. Flores majority (629-37); Note on Amar s critique Flores (639-46) (optional); Notes on Hibbs and Lane (647-49) standing) (optional) What is the unconstitutional conditions doctrine? What is the difference between an unconstitutional condition and a decision by the governme not to subsidize? Does this doctrine capture anything not included by the substaive doctrine in each case? What is the exte of Congress s ability to enforce the Reconstruction Amendmes? What is prophylaxis? Does Congress s power depend on the strength of the underlying right?