All office hours held in the Lakefront on Langdon room of the Memorial Union (1st floor, across from the main entrance, big glass windows)
The goal of this course is to explore a broad range of questions concerning the meaning of “rights” and “liberties” in the American constitutional system. Students are presumed to be familiar with the workings of the American governmental system, and the basic system of its courts. During this semester we will attempt to fill in some of the substantive principles that define the limits of governmental power (“negative liberties”), and the obligations that government has toward its citizens (“affirmative rights”).
Readings for the course will be taken from David O'Brien, Constitutional Law and Politics, vol. II (7th edition) and a reading packet, both of which are available at the Underground Textbook Exchange, located on State Street. In the syllabus, readings from the packet are in italics. The fact that we will be relying on O'Brien's book does not mean that his understandings are authoritative, only that the book was convenient for other reasons (cost, format, etc.) The other “text” for this course is the syllabus. The syllabus for this course includes comments and questions that are intended to guide students’ reading of the texts. Students are expected to look at the syllabus and make use of these materials.
In addition to the lectures, there will be weekly meetings of the discussion sessions. These sessions are partly to give students an opportunity to ask questions, and partly to extend the discussion of class materials in a less formal setting. There will be no meeting of sections during the first week of class.
The graded work for this class consists of a midterm examination, a moot court exercise (including a written brief), a final exam, and course participation. The midterm exam counts for 20% of the grade; the moot court exercise and brief count (together) for 30% of the grade; the final exam counts for 40% of the grade; and, finally, participation in section counts for 10% of the grade. The midterm and final exams and the moot court brief are all take-home assignments, and ample time is provided for their completion. Consequently, unless an arrangement has been made with the professor or TA prior to the due date, any exam or brief that is turned in late will suffer a reduction in grade of 10% per day.
Introduction: Problems in Constitutional Interpretation 1/19 Introduction: The Politics of Constitutional Interpretation
We will discuss a range of interpretive approaches that are commonly seen in American courts, in a continuum displayed as follows:
The idea behind this continuum is that different approaches are arrayed in terms of the degree to which they depart from the words of the text. Note that as one moves toward either end of the spectrum, the connection to the text becomes increasingly attenuated. Why might this be a desirable or undesirable development? Some questions to consider:
- What is the source for an authoritative understanding of the Constitution? what is the
relationship between the text and that authoritative source?
- Is one way of reading text necessarily more “conservative” or “progressive” than
1/21 The Question of Unenumerated Rights
*Ronald Dworkin, “Unenumerated Rights: Whether and How Roe Should be Overruled”
*Richard Posner, “Legal Reasoning From the Top Down and From the Bottom Up: The Question of Unenumerated Constitutional Rights.”
In discussions of rights and liberties, probably the single biggest issue in constitutional interpretation is the weight to be attached to “enumerated” versus “unenumerated” rights. This issue is a lot more complicated than it might first appear, not least because the distinction between the two categories is difficult to define. For example, those who argue that only rights enumerated in the text should be enforced against the governments of the states are relying on a theory called “incorporation,” which itself is never mentioned in the text! Furthermore, there are various textual provisions that seem to explicitly instruct us to enforce non-enumerated rights, creating the odd situation of an enumerated right to unenumerated rights. And there are unenumerated rights that no one finds controversial, such as the right of free association in the Ist Amendment, or the extension of the warrant requirements of the IVth Amendment to telephones. On the other hand, those who argue in favor of including unenumerated rights often have a difficult time explaining how we should distinguish between unenumerated constitutional rights and other privileges that do not have that status. The two authors whom we read for today, Dworkin and Posner, each approach the question in that way, and arrive at diametrically opposing answers. Think about which of these arguments you find more persuasive, but don’t stop there! Think also about what elements of the argument you did not accept you find to be the strongest, and how you might modify the argument that you preferred in light of those strong opposing points. This is the beginning of thinking constitutionally.
I.The XIVth Amendment: Early Substantive Due Process and Incorporation A. From Privileges and Immunities to Due Process 1/26 “Privileges and Immunities of Citizenship”
* Corfield v. Coryel (1825)
* Dred Scott v. Sanford (1857), 1360-66 (majority opinion)
* Slaughterhouse Cases (1873), 277-81
* Civil Rights Cases, (1883) (majority opinion), 1371-75
* Yick Wo v. Hopkins (1886)
With this session we begin our consideration of the Fourteenth Amendment, which for the first time made a broad array of constitutional rights guarantees applicable to the states. The first question, of course, is what rights, exactly, the Fourteenth Amendment guarantees. We begin with the earliest cases, which essentially took the Privileges and Immunities Clause out of consideration and narrowed the scope of the Due Process Clause. What might be behind these moves by the Court?
1/28 Tiers of Scrutiny: Rational Basis and Beyond
* Plessy v. Ferguson, 1378-83
* Gulf, Colorado & Santa Fe v. Ellis (1897)
* United States v. Carolene Products (1938)
Here we look at the first cases that tried to define the requirements of due process, and introduce the idea of “tiers of scrutiny,” which is simply the principle that courts do not review all laws in the same way. There are three levels of possible judicial scrutiny: Strict Scrutiny, Intermediate Scrutiny, and Rational Basis. These early cases were all couched in terms of what today would be called “rational basis scrutiny.” We will also introduce the idea of “substantive due process.”
2/2 Early Substantive Due Process: The “liberty of contract” and the Public/Private divide
* Background discussion, 263-75
* Munn v. Illinois, 281-84
* Lochner v. New York, 284-89
In the late nineteenth and early twentieth centuries, a version of substantive due process was used to strike down many state laws that were found to infringe on “the liberty of contract”; we read these cases both for historical interest and to see how the debates over the meaning of the Due Process Clause were shaped. In addition, these cases are perfect illustration of the proposition that broadly conceived rights protections can be political conservative as well as politically liberal or progressive.
2/4 The demise of “liberty of contract”
* Muller v. Oregon, 290-92
* West Coast Hotel Co. v. Parrish, 292-95
* Lincoln Fed’l. Labor Union v. Northwestern Iron & Metal Co., 296-97
The usual story is that judicial protection of the liberty of contract eventually gave way under the pressure of the Great Depression and the need for effective governmental response to widespread economic devastation (see Sutherland’s dissenting opinion in West Coast Hotel for example. But a closer looks reveals some complications; for one thing, the “liberty of contract” was not nearly so absolute as it might appear from reading Lochner by itself. What, exactly, changed in the Court’s reasoning from Lochner to Parrish?
2/9 Incorporation and the Fourteenth Amendment : What rights apply against the states?
* Background discussion, 324-39 (note chart, pp. 334-35)
* Barron v. Baltimore (1833), 339-41
* Hurtado v. California (1884)
There are a few basic approaches to defining the substantive rights that the Due Process Clause protects. “Incorporation” is the idea that the Due Process Clause took rights that previously applied to the federal government, and made them applicable to the states. This is an alternative to the substantive due process, introduced earlier, which implies that the Fourteenth Amendment is an independent source of substantive new rights which may or may not coincide with those guaranteed in the Bill of Rights. Finally, a third approach looks outside the Constitution altogether, finding the substantive definition of rights guaranteed by the Fourteenth Amendment in the common law of the states or historical traditions.
2/11 Incorporation reconsidered
* “The very essence of a scheme of ordered liberty”: Palko v. Conecticut (1937), 346-49
* “Fundamental fairness”: Adamson v. California, (1947) 349-54;
* “Shocks the conscience”: Rochin v. California (1952), 354-57
* “Deeply rooted” Moore v. East Cleveland (1977), 1296-97
With the success of the theory of partial incorporation, it became necessary for the Court to explain why some rights apply against the states and others do not. In the process, the conversation recapitulates the earlier discussion of substantive due process. In both cases, the question turns on how one conceives of some rights as more important than others, and how one thinks of the Constitution as a rights-guaranteeing text.
III. The First Amendment A. Freedom of Speech 2/16 Defining Unprotected Speech: the Clear and Present Danger Approach
* Background discussion, 408-29 (the Zenger case)
* Schenck (1919), 427-28
* Gitlow (1925), 428-33
* Brandenburg v. Ohio (1969), 445-47
* Stewart v. McCoy (2002)
* Rice v Paladin Enterprises (1997)
Of all the rights guarantees that have been applied against the states by incorporation, those contained in the First Amendment are probably the best known and most fully developed. . This week’s readings introduce the basic concepts, and illustrate something of this historical path of development that led to the adoption of these concepts.
2/18 Defining Unprotected Speech: The Categorical Approach -- Fighting Words and
* Background discussion, 453-59
* Miller v. California (1973), 466-71
* New York Times v. Sullivan (1964), 555-60
* Chaplinsky v. New Hampshire (1942)
In this week’s lectures we explore the idea of “unprotected speech,” and see how since the incorporation of the Free Speech Clause in 1925 the approach to understanding the limits of free speech has shifted. The old “Clear and Present Danger” test was one based on circumstances, in which the authority of the state to ban speech depended on the state’s ability to argue that under the particular circumstances in which it occurred, that speech was a danger to society. The modern approach, beginning in the 1960s, is to divide speech into two sharply distinct categories based on its content. This is the “categorical approach,” and it is the reason we spend so much time worrying about what constitutes “obscenity” or “libel.”
2/23 Regulating Protected Speech; Forum Analysis
* Introduction to Forum Analysis
*Rosenberger v. University of Virginia (1995), (Free Speech Clause discussion) 777-81
While much Free Speech Clause jurisprudence consists of arguments about what kinds of speech are or are not protected, that is very far from the entire story. If it is determined that a law regulates unprotected speech, then the analysis is essentially over; rational basis scrutiny will be applied (unless, of course, some other constitutional rights guarantee is implicated), and the law will most likely be found to be constitutional. On the other hand, when it has been determined that a law regulated protected speech, a good deal of further analysis is required. The first thing that has to be determined is the nature of the location - the “forum” - in which the speech occurred. Exploring the rules and standards for that determination will be the subject for Monday’s lecture. (I have taken the liberty of assigning a short excerpt from my own book on the First Amendment here; I wrote the book in the first place because I did not find the existing materials adequate. Feel free to read the appropriate sections of O’Brien’s discussion and see whether you agree with me!) As you will hear, there are three basic categories: public, limited (or “quasi-public”), and private forums. First Amendment free speech protections apply most strongly in the first case, and least strongly in the last. Conversely, the authority of the state to regulate anything is strongest in the first situation and weakest in the last. Which creates an interesting parallel; the restrictions on state authority are most severe where they are needed most. Is that the was we reason in other areas of constitutional rights protections? Should it be?
2/25 The Limits of Free Speech? The Problem of Hate Speech
* Beauharnais v. Illinois (1952)
* R.A.V. v. St. Paul (1992) (majority opinion), 520-29
* Virginia v Black, (2003) (plurality opinion), 531-35
One of the enduring controversies in First Amendment jurisprudence concerns the treatment of “hate speech.” Should courts recognize a category of unprotected speech by this name? Does hate speech fit within existing categories such as libel or fighting words?
first midterm distributed
3/2 Indecency and Expressive Conduct
* Background discussion: expressive conduct, symbolic speech, and the O’Brien
* Texas v. Johnson, 674-81
* Cohen v. California, 507-11
* FCC v. Pacifica Foundation, 511-16
* City of Erie v. Pap’s A.M., (majority opinion, concurring opinion by Scalia), 481-84
With these cases, we look at the regulation of two particular categories of protected “expression,” which includes both literal “speech” and expressive conduct. It turns out that even within the realm of protected expression, all expression is not equal. What is the justification for the judicial creation of these categories? Do they make sense?
3/4 Compelled Speech and Government Speech
* West Virginia State Bd. of Educ. v. Barnette (1943), 655-64
* Rust v. Sullivan (1991), 538-43
We conclude our discussion of free speech with two particular categories that do not fit easily into the analytical framework of the other cases. First, all the cases we have looked at in this area have involved attempts by the government to prevent people from expressing themselves. What about the opposite concern: can the government compel you to say something? Second, when the government itself is the speaker, are there limits on what it can say? Put another way, do the protections that are afforded private citizens’ right to express themselves extend to government officials, government employees, and recipients of government funds?
first midterm due
3/9 Freedom of Association
* NAACP v. Alabama (1958), 694-97
* Roberts v. United States Jaycees (1984), 697-700
* Keller v. State Bar of Calif. (1992)
* Boy Scouts of America v. Dale (2000) (majority opinion), 700-04
The “freedom of association” is a classic example of an unenumerated right that derives from provisions in the text by implication. These cases involve efforts by the government to control the way in which private persons associate with one another. One issue that rises to the fore in these distinction is the reliability of the distinction between “public” and “private,” and between state and private actors. Just as the lines of demarcation between these categories may become blurry when the government acts like a private person, they may become unclear where private organizations act in a way that seems “public.”
B. The Religion Clauses: Freedom of, and from, Religion 3/11 The Establishment Clause: from incorporation to the Lemon Test
*Background discussion, 709-17
* Everson v. Bd. of Education of Ewing Township (1947), 735-41
* Engel v. Vitale (1962) (majority opinion) 742-45
* Abbington v. Schempp (1963) (majority opinion), 746-49
The Religion Clauses were incorporated against the states in Cantwell v. Connectict, in 1940 and Everson, in 1947. Like the Free Speech Clause, the history of the Religion Clauses can be divided into two distinct periods. From the 1940s through approximately 1990, the driving concept was “separation of Church and State.” Since 1990, however, that idea has largely been replaced by a focus on a reconceived idea of “neutrality.” Notice how this brings the jurisprudence of the Religion Clauses more closely into line with the jurisprudence of the Free Speech Clause, a process that reached its apotheosis in the discussion of Establishment Clause issues in Rosenberger. In this lecture, we look at the early approach to the Establishment Clause. Look to see how the understanding of this generation of judges differs from our modern approach. Which fits more neatly with your preferred mode of constitutional interpretation? In general, Establishment Clause cases fall into three categories: Support, Endorsement, and Access. These early cases are about support, meaning that they ask what are the limits that the Establishment Clause imposes on government’s ability to give financial or other material support to religious organizations and practices.
3/16 The Lemon Test and Beyond
* Lemon v. Kurtzman (1971), 751-58
* Wallace v. Jaffree (1985) 758-66
In 1971, the 3-part Lemon test established what was supposed to be a final summation of the tests and criteria that had been developed over the years for the application of the Establishment Clause. The test was called into question almost immediately by critics who felt that it went too far and critics who felt that it did not go far enough. By the mid-1980s it was clear that Lemon was far from the last word on the subject.
3/18 Endorsement and Display
* Lee v. Weisman (1992), 768-73
*Elk Grove Unified School District v. Newdow (2004) 166-73
The second category of Establishment Clause cases, “endorsement,” asks when the government goes to far in expressing support for, or opposition to, religion. Here the issue is not the provision of money or material support, it is the government putting its imprimatur on religion. Israel is officially a Jewish state; Ireland is a Catholic nation. Would it offend the Establishment Clause for the United States to declare itself a Christian country? In June 2009, 14 states celebrated Jesus Day, a practice that goes back for more than a decade. (For example, in June 2000 Gov. George W. Bush of Texas proclaimed Jesus Day in his home state.) Does any of this raise questions under the Establishment Clause? Why, or why not?
First Moot Court Exercise, 3/20-21
3/23 The “New Neutrality”: Access and Indirect Support
* Rosenberger v. University of Virginia (1995) (part II - Establishment Clause) 781-82
* Good News Club v Milford (2001)
* Agostini v Felton (1997), maj. Op. (787-93)
*Zelman v. Simmons-Harris (2002), (maj. op. and Souter diss.) 793-96, 798-801 to the
end of the second paragraph)
We continue our discussion of the Establishment Clause, turning to cases from the 1990s and beyond 2000 to see the contours of the modern “neutrality” approach by examining “access” cases, meaning cases involving religious groups’ claim of a right to have the same access to public property or resources that is given to non-religious groups. These case are in some ways the obverse of the earlier cases, since the issue here is not whether the government has gone too far in granting favor to religious groups but whether it has failed to go far enough, and thus demonstrated hostility to religion.
3/25 Free Exercise
*Sherbert v. Verner (1963) (majority op.), 806-10
*Wisconsin v. Yoder (1972) (majority op.), 812-15
* Employment Division, Dept. of Human Resources of Oregon v. Smith (1990) (majority
opinion, O’Connor concurring opinion), 816-22
*Church of the Lukumi Babalu Aye v. City of Hialeah (1993) (majority op.), 825-29
* Locke v. Davey (2004), 841-45
Turning to the Free Exercise Clause, we find a sharpened focus on a question that has divided different approaches to the Religion Clauses all along: to what extent is “religion” a special case? The neutrality approach of Rosenberger, et. al., insists that government must treat religious expression no differently than it treats other forms of expression, at least in some contexts (indirect support). What happens when the same emphasis on neutrality is applied to the Free Exercise Clause? The answer is Smith, one of the most controversial cases of its era. (Students who have taken Poli Sci 411 may recall the Religious Freedom Restoration Act, and City of Boerne v. Flores, which followed Smith).
*** SPRING BREAK ***
Sad, but true; we will have to interrupt our exploration of the U.S. Constitution for an entire week. Don’t complain to me - talk to your legislator.
IV. The Fifth Amendment: the Takings Clause 4/6 The Fifth Amendment: the Takings Clause
* Hawaii Housing Authority v. Midkiff (1984), 303-06
* Kelo v. City of New London (2005)
* Lucas v. S. Car. Coastal Comm’n (1992), 306-11
Turning to the Takings Clause, in the late 1800s, a body of cases developed around the construction of railroads and other, similar, public condemnations of land. These were analytically simple, although the facts could become complex in the extreme: the government exercised its authority to seize land for the construction of projects considered to be beneficial to the public weal; the limits of that concept are tested in Kelo. In addition, in the modern era the focus has shifted to the idea of “regulatory takings.” This is the idea that sometimes, the act of regulation can constitute a “taking” even without the seizure of actual property for a public purpose. And here is where things got complicated, as this novel theory of the Fifth Amendment ran squarely into conflict with the common law tradition of local regulation encompassed by the phrase “police powers.”
V. Procedural Due Process and Vagueness 4/8 Procedural Due Process and Vagueness
* Goldberg v. Kelly (1970)
* Matthews v. Eldridge (1976)
* Paul v. Davis (1976)
* City of Chicago v. Morales (1999)
Today we return to the Due Process Clause. In its simplest and most obvious reading, this clause requires that the government go through some set of procedures before it deprives a person of “life, liberty, or property.” What are those procedures? How should they vary in different contexts? Where to we look to decide how much process is “due” someone in a given case?
Second Moot Court Exercise, 4/10-4/11
VI. Modern Substantive Due Process A. The Right to Privacy 4/13 The Public/Private Divide revisited (again!): the right to privacy
* Background discussion, 1232-35, 1296-99
* Stanley v. Georgia (1969), 464-66
* Griswold v. Connecticut (1965), 359-68
* Eisenstadt v. Baird (1972)
The public/private divide that was at the heart of the earliest applications of the Fourteenth Amendment reappeared in modern times in the form of the much-debated constitutional right to privacy. The cases that brought the issue to the fore primarily involved sex and reproduction, which in and of itself says a great deal about the way in which categories of “public” and “private” are conceived today, and how those conceptions differ from those of a century ago. These are, of course, among the most famous and controversial of all modern cases; come prepared with opinions, but make sure they are constitutional opinions!
4/15 The right to privacy and abortion
* Roe v. Wade (1973), 1249-62
* Planned Parenthood of Southeastern Pennsylvania v. Casey, (1992), 1270-79 (majority
There were 1.2 million surgical abortions performed in the United States in 2005 (as opposed to pregnancies terminated through the ingestion of RU-486, although even that characterization is debatable). This is the lowest number of abortions since 1976. The question of whether a general right of privacy extends a the right of a pregnant woman to terminate her pregnancy has been one of the most vexing issues in constitutional law in the modern era. Why?
B. The Limits of Substantive Due Process 4/20 Modern Substantive Due Process and its Limits
* Background discussion, (Michael H (1989) and DeShaney (1989)), 375-90
* Maher v Roe, 1262-65
* BMW of North America v. Gore, (1996) (majority opinion), 391-95
* Washington v. Glucksberg, (1997) (majority opinion), 1323-29
The cases that discovered a constitutional right to privacy in the 1970s insisted they were not reviving the doctrine of substantive due process, although the critics of those cases insisted that they were. In the 1990s, the argument shifted; by this time, it is universally accepted that some version of “substantive due process” is an element of American constitutional law, as the opinions in Glucksberg and Lewis make clear.
VI. Fourteenth Amendment - Equal Protection 4/22 Tiers of Scrutiny revisited: racial classifications
* Background discussion 1325-34, 1336-50
* Brown v. Bd. of Ed. of Topeka, Kansas I (1954),1401-07
* Brown v. Bd. of Ed. of Topeka, Kansas II (1955)1413-16
* Milliken v. Bradley (1974).1427-30
* Washington v. Davis (1976)
* Freeman v. Pitts (1992), 1431-34
In addition to the Due Process Clause, the other source for substantive rights under the Fourteenth Amendment has been the Equal Protection Clause. Here there is no argument about “incorporation”; unlike the Due Process Clause, the Equal Protection Clause has no cognate in the earlier portions of the Constitutions. Whatever it means, then, the Equal Protection Clause acts as a direct restraint on the states that must be understood in its own terms. The basic issue of equal protection is, of course, what “equal” means, and when it is impermissible to treat different people differently. To answer that question we return to the idea of Tiers of Scrutiny. The other question is under what circumstances section XIV(5) provides Congress or the courts with the authority to craft remedies to undo the effects of past discrimination.
4/27 Reverse discrimination? Affirmative Action in education and employment
* Background discussion (DeFunis (1974)), 1456-63
* Regents of the University of California v. Bakke (1978), 1464-73 (majority opinion)
(majority opinion and portion of dissenting opinion)
* Gratz v. Bollinger (2003) (majority opinion), 1500-03
* Grutter v. Bollinger (2003) (majority opinion), 1505-09 (majority opinion)
In the past, questions of equal protection arose out of states’ efforts to harm or target minority groups. In modern times, the opposite concern has arisen in the debates over affirmative action. The recent opinions concerning the University of Michigan did very little to revise the terms of that discussion. Instead, they primarily confirmed the continuing relevance of arguments made from the 1970s through the 1990s. One of the man peculiar things to notice about this debate is that it involves efforts by the majority to disadvantage itself for the benefit of minorities. Is that a different situation from one in which the majority seeks to gain and advantage by disadvantaging minority groups?
4/29 Gender: discrimination
* Frontiero v. Richardson (1973), 1521-24
* Craig v. Boren (1976), 1525-29
* Michael M. v. Superior Court of Sonoma County (1981), 1529-32
* United States v. Virginia (1996) (majority opinion), 1533-42
The Equal Protection Clause has been most commonly invoked in cases involving racial classifications, which trigger strict scrutiny and hence require extensive judicial review of the laws and facts involved in each case. Other categories, however, are also subject to review under the Equal Protection Clause. The treatment of classifications based on sex illustrate either the difficulties involved in attempting to craft manageable standards for the judicial review of legislative action, or else they illustrate the unreasonableness of the Court’s treatment of different categories of classification. Or both. Note especially the paradoxical consequences of modern equal protection doctrine for the respective treatment of laws that classify by race and sex.
* Bowers v. Hardwick (1986)
* Romer v. Evans (1996), 1550-60
*Lawrence v. Texas (2003), 1304-15
Three times the Court has considered laws that classify persons based on their sexuality by singling out homosexuals. Three times the Court has declined to answer the basic question: what level of scrutiny attaches to classifications based on sexual orientation?
5/6 Other classifications, and substantive equal protection
* Dandridge v Williams (1970)
* San Antonion School District v. Rodriguez (1973), 1564-74
* Plyler v. Doe (1982), 1583-88
In addition to the focus on suspect and quasi-suspect classes, in some cases there have been indications of the Court’s willingness to embrace something called “substantive equal protection.” This analysis, which blends traditional equal protection and due process categories, proceeds on the assumption that the requirements of equal protection have particular force when the law at issue is one that affects fundamental rights. All of which gives rise to interesting and challenging questions.
Final Exam Distributed