Syllabus
introduction & judicial review
Class 1: Introduction: Themes and Discourses
Reading:
The United States Constitution (Yup, you actually have to read this! Every single word! In fact, I would print it out and bring it to class every day because we're going to refer back to it frequently. Several nonprofit advocacy organizations offer small, pocket-sized versions, so you can donate to your favorite advocates while carrying around the Constitution!)
How Our Laws Are Made (pp. 1-8, 50-54... the book's pages, not the number on the pdf)
James Madison, Vices of the Political System of the United States
CB 1-11 (including Marbury v. Madison)
Questions while you read:
What are the goals of constitutions? Why do we really need them?
Which provisions of the Constitution allocate power to specific people or parts of the government?
Why does the Constitution allocate power in those ways? What are the benefits? What are the problems?
Is judicial review antidemocratic? If so, does that matter? Why or why not?
When does Marshall envision the Court getting involved? Is that different than today?
What would the federal court system be doing if it did not assume the responsibility of judicial review? What are the effects to the constitutional system of Marbury?
the judicial power:
judicial review and justiciability
judicial review and justiciability
Class 2: Interpreting the Constitution & Deciding the Constitutionality of Statutes
Reading:
CB 13-32 (including District of Columbia v. Heller)
Bostock v. Clayton County (majority and Alito's dissent, but only 1-17)
Questions while you read:
What are some of the methods of judicial interpretation, particularly as discussed in Heller?
Can you identify positives and negatives of each?
Consider the textual or originalist approaches. What is its chief selling point? What are its chief drawbacks? Whom does it empower?
Class 3: Case or Controversy Requirements: Standing
Reading:
CB 52-65 (including Mass v. EPA, excerpt of LA v. Lyons, Lujan v. Defenders of Wildlife, Duke Power, and Clapper v. Amnesty Int'l)
Questions while you read:
What is a case or controversy in Article III?
Why do we have this requirement? What would be so bad about the alternative?
How do standing rules -- liberal and conservative -- allocate or take away power from plaintiffs and defendants? Who benefits when it's hard to obtain standing to sue?
Class 4: Political Question Doctrine
Reading:
CB 91-109 (including Baker v. Carr and Rucho v. Common Cause)
Common Cause v. Lewis (pp. 298-306, 331-341... Note that this decision is 357 pages long. When you have time, the findings of fact at pp. 11-291 are REALLY worth reading. I promise. But they are not required for this class.)
Questions while you read:
What is a "political question" to an Article III court? Why are courts not supposed to take political questions?
Do you agree with the decision in Baker v. Carr? Why or why not?
Does Rucho follow from Baker?
Does Lewis prove that the Court in Rucho was wrong? If so, what was the Court's majority really doing in Rucho?
Saying that a case is a "political" question takes the court out of the story. But how is that not really true? Who wins -- to whom is power allocated -- when a court says a question is "political"?
Class 5: The "Shadow Docket"
Reading:
TBD
Questions while you read:
RBD
the legislative power:
federalism and the power of Congress
federalism and the power of Congress
Class 6: What Can Congress Do?
Reading:
CB 119-130 (including McCulloch v. Maryland)
CB 133-154 (including NFIB v. Sebellius)
Questions while you read:
Why did the Constitution set out specific power authorizations for Congress? Why not give Congress--like the House of Commons--general powers?
Can you try to fit anything in an enumerated power?
Do you find Sebellius a smart use of Constitutuional doctrine? Or a cheap, too-cute-by-half cop out?
Class 7: The Early Commerce Clause
Reading:
CB 155-167 (including Gibbons v. Ogden and all notes)
Questions while you read:
In what way is Gibbons a revolution not just in constitutional law, but in federal government power and the relationship between government and social problems?
Is Gibbons an "originalist" interpretation?
What are some of the effects of Gibbons on marginalized populations? Did the Framers imagine that the states would be better at addressing the problems of marginalized populations in their states? How did Gibbons change that relationship, if at all?
Could this Congressional power be abused? How?
Class 8: A Switch In Time That Saved Nine
Reading:
CB 167-187 (including NLRB v. Jones & Laughlin Steel, United States v. Darby, Wickard v. Filburn, Heart of Atlanta Motel v. United States, Katzenbach v. McClung, and Garcia v. San Antonio Metropolitan Transit Authority)
Questions while you read:
Things really changed in 1937. Why? What would have happened without the "switch"?
What are the doctrinal tools that the new Court majority used to declare legislative actions constitutional?
In the context of this switch, how can we maintain any legitimacy in the legal process? Isn't it all politics?
Is this abuse of power by the judiciary?
Class 9: The Evolving (or Eroding) Commerce Clause
Reading:
CB 187-215 (including United States v. Lopez, United States v. Morrison, and Gonzales v. Raich)
Questions while you read:
What is the Commerce Clause supposed to allow Congress to do?
Why are the federal courts eroding the power of the Commerce Clause? Who wins--who is empowered--by a weaker Commerce Clause doing less work?
Read the facts of Lopez and Morrison more than once. And then determine if you notice how the Court is leveraging the facts to make their Commerce Clause arguments.
Class 10: Fourteenth Amendment and National Power
Reading:
CB 253-274 (including Katzenbach v. Morgan, City of Boerne v. Flores, and Shelby County v. Holder)
Questions while you read:
How is Shelby County a repudiation of some of the earlier cases on Congress's power?
Class 11: Appellate Argument. Does Congress have the authority to pass the John Lewis Voting Rights Act?
Reading:
John Lewis Voting Rights Act text
the executive power:
the president and (some of) what's happened
the president and (some of) what's happened
Class 12: Introduction to the Federal Executive Power
Reading:
CB 275-289 (including Youngstown Sheet & Tube and U.S. v. Nixon)
CB 358-387 (including Hamdi and Boumediene)
Questions while you read:
Why did President Truman take this drastic action in the first place?
On what basis did the Court limit the government's power in Youngstown? Does this reflect an outdated conception of what's needed in a modern industrial society or does it better reflect adaptions to new social contexts?
Undoubtedly, these two cases arise in very different contexts. Your job is to identify the links between the two. In what ways are these cases talking about some of the same issues? What issues?
Class 13: Trump's Muslim Ban and President Obama's DACA Program
Reading:
CB 395-406 (including Trump v. Hawai'i)
Dep't of Homeland Security v. Regents of the University of California
Class 14: Review
the constitution (and this class) in transition
Class 15: Before (and After) the Civil War
Reading:
CB 506-516 (the Slaughterhouse Cases and Saenz v. Roe)
CB 516-529 (on the incorporation of the Bill of Rights to the States, including McDonald v. City of Chicago)
Questions while you read:
Dred Scott is a complicated case, not because of its result (I think we can all agree that the decision is morally wrong), but because it is the product of a series of interlocking social, political, legal, and moral questions. I encourage you to read it twice.
As a matter of morality, Dred Scott is beyond the pale. Period. Full stop. Is what is legal different from what is moral?
The Court is getting involved in the issue of slavery. Should it? Do you want to see it getting involved in current political issues? Why or why not?
What was the original purpose of the Reconstruction Amendments? Whatever you decide, should that matter for how the amendments are interpreted today?
There were 4 claims brought by the Slaughterhouse plaintiffs. What were they? And what were the constitutional bases for each?
Was the case rightly decided? What was the alternative? What was the original vision of the privileges and immunities clause?
The clause has applied sparingly, but appeared again in Saenz. Did that case change anything about the privileges and immunities clause? Consider Thomas's dissent in particular.
What is incorporation? Should we have wholesale incorporated the amendments to the states?
Class 16: Substantive Due Process: From Lochner to Carolene Products
Reading:
CB 586-592 (including Lochner v. New York)
CB 593-595 (Muller v. Oregon)
CB 599-603 (including West Coast Hotel v. Parrish, United States v. Carolene Products).
*OPTIONAL: Brandeis Brief in Muller v. Oregon (Links to an external site.), start reading in Part II, when he gets to the negative health and safety effects. Advanced note: This brief was considered very progressive at the time because it brought the actual world--the actual effects of law--into the courtroom, departing from the legal formalism of the era. But in doing so, Brandeis and his team relied on what we would see as antiquated stereotypes of women.
Questions while you read:
How, if at all, were Lochner and West Coast Hotel different?
Why the switch?
Read the highlighted footnote in Carolene Products a few times. Under Footnote 4, what sorts of actions are going to get a closer look than economic legislation?
rights: equal protection
Class 17: Rational Basis
Reading:
CB 683-691
CB 691-711 (including Romer v. Evans, Railyway Express v. New York, New York City Transit Authority v. Beazer, U.S. Department of Agriculture v. Moreno, and City of Cleburne v. Cleburne Living Center)
Questions while you read:
What are under-inclusive and over-inclusive laws? Why are they problematic?
Is the Court actually applying rational basis review in these cases?
These are "animus" cases. What is wrong with legislating based on animus? Why does it violate the equal protection clause?
Class 18: Race-Based Classifications
Reading:
CB 712-716 (including Dred Scott v. Sanford)
CB 716-728 (including Dred Scott (review), Korematsu v. United States, Loving v. Virginia, and Palmore v. Sidoti)
Questions while you read:
What facts are important to the outcome in Loving? I'm not asking for all the facts. I'm asking you to identify the facts that were essential to the Court's conclusion.
Was anything different in Korematsu than in Brown and Loving?
To what extent is marriage important to the result in Loving?
Class 19: Race-Based Classifications
Reading:
CB 728-747 (including Plessy v. Ferguson, Brown v. Board of Education, Washington v. Davis, and McCleskey v. Kemp)
CB 761-771 (including Swann v. Charlotte-Mecklenburg Board of Education and Milliken v. Bradley)
Questions while you read:
What are the assumptions the Plessy Court makes about race? How are they wrong?
Is "separate but equal" based on an incorrect reading of the Fourteenth Amendment? How so? Or could it be a legitimate interpretation?
What does "color blind" mean when it comes to the Constitution?
Do you think Brown is a strong opinion? What, if any, are its legal weaknesses?
Would the NAACP's strategy of using the federal courts to push social change work today? Has it in other areas?
Class 20: Affirmative Action: Race-Based Classifications That Allegedly Benefit Minorities
Reading:
CB 803-832 (including Regents of the University of California v. Bakke, Grutter v. Bollinger, Gratz v. Bollinger and Fisher v. University of Texas, Austin)
Students for Fair Admissions v. Harvard (1st Cir)
Questions while you read:
As a matter of law, is the context of race-based classifications to benefit minorities relevant? That is, does it matter if the classification is being used in the workplace versus the school?
As a matter of policy, should it be relevant?
What do these programs have to do in order to meet strict scrutiny?
Class 21: "On the Basis of Sex": The Life of RBG
Reading:
CB 836-854 (including Frontiero v. Richardson, Craig v. Boren, United States v. Virginia, and Geduldig v. Aiello)
Questions while you read:
Do some research on the extraordinary life (so far!) of Ruth Bader Ginsburg, who argued Frontiero v. Richardson before the Supreme Court and issued the opinion in US v. Virginia.
On what bases are distinctions between the sexes created and maintained? Is this a matter of law or social practice?
Many of these cases were part of a strategy to advance gender equality at the Supreme Court. Do you see a pattern? Was it the same or different from the strategy employed by the NAACP to win racial equality?
Class 22: "On the Basis of Sex": The Life of RBG
Reading:
Califano v. Goldfarb (majority only)
CB 854-859 (including Orr v. Orr and Mississippi University for Women v. Hogan)
CB 862-875 (including Rostker v. Goldfarb, Califano v. Webster, Nguygen v. INS)
Questions while you read:
Why is gender discrimination that allegedly is to the benefit of women not really to the benefit of women? In what way does the discrimination still harm women?
What are the legal tools litigators are using here to win these cases? Can you come up with other strategies?
Why does gender equality get intermediate scrutiny and not strict scrutiny?
rights: due process
Class 23: Love, Sex, and Contraception
Reading:
CB 950-969 (including Buck v. Bell and Skinner v. Oklahoma, Griswold v. Connecticut and Eisenstadt v. Baird)
Questions while you read:
What was the social and political context in which Buck v. Bell was decided?
Why was it important -- or was it? -- that the petitioner was married in Griswold? Was the marriage important to the Court's decision?
If so, how could the Court extend Griswold to Eisendstadt?
What social interests are served by access to contraception? Why is it a constitutional mandate rather than just a matter of local policy?
Class 24: Love, Sex, and Pregnancy
Reading:
CB 969-987 (including Roe v. Wade and Planned Parenthood v. Casey, Gonzalez v. Carhart and Whole Women's Health v. Hellersetedt)
June Medical v. Russo (Roberts, CJ, concurring in the result)
Questions while you read:
What exactly is the Court's holding in Roe? Is it a strong decision that adequately protects a woman's right to choose? What problems, if any, do you see in the decision?
The Court goes out of its way to say that Roe v. Wade does not need to determine precisely when life begins. Is that really true?
What was the Court's holding in Casey?
This is a different methodology compared to Roe, right? Why the new approach?
What exactly is an "undue burden"?
How did it change in June Medical?
Class 25: Love, Sex, and Marriage
Reading:
CB 909-929 (including United States v. Windsor, Zablocki v. Redhail, Obergefell v. Hodges)
Pavan v. Smith (Gorsuch, J., dissenting)
Questions while you read:
What's so special about marriage?
What makes a right "fundamental"?
What level of scrutiny is being applied in these cases?
Are Windsor and Obergefell equal protection or due process cases? Does it matter?