PS 46: AMERICAN CONSTITUTIONAL LAW

Professor Bob Johnstone
Winter Term 1996

"Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question."

--------Alexis de Tocqueville

This course---as its companion, POLS 46: Institutions & Democracy--- is a study of the United States Supreme Court, the highest judicial body in the land and that which is particularly concerned with determining, expressing, and revising the political and juridical principles that mold the public philosophy of the nation.

The course seeks to accomplish three main purposes:

1. to develop an understanding of the important constitutional opinions and doctrines derived by the Court;
2. to provide a forum for the analysis of competing or conflicting elements in American political and constitutional thought; and
3. to forge a perception of the unique character of judicial politics in the United States.

From Marbury v. Madison, to Dred Scott v. Sandford, to U. S. v. Nixon, to Roe v. Wade, the Supreme Court has been thrust, often against its will, into the thorny grasp of the political thicket. The political impact of the Court's actions will thus loom large in our consideration of its cases. But for our purposes, the opinions of the Court will be at least as important as its decisions. What insights have the justices rendered regarding the fundamental issues of liberty, power, and authority that have divided their fellow citizens over the years? The opinions of the Court represent much of the best thinking (and---yes---some of the worst) that we have on the principles that have guided political action and molded public views in this country. It will be one of our important tasks to develop the skills to discern the varying degrees of judicial excellence represented in the case work before us.

There is only one text book for this course:

David M. OāBrien, Constitutional Law and Politics, Volume Two: Civil Rights and Civil Liberties.

It is essential that you obtain the 2nd edition, published in 1995. This will be supplemented by handouts on a few cases decided since its publication.

Your course grade will be based on a midterm examination, a final examination, and a term paper. Your preparation and participation in examining the cases in class will also be weighed in the balance. The term paper (12-15 pages) will pursue one of the following aims:

1. The first option is an analysis of the judicial philosophy or impact of a particular Supreme Court Justice on the law with respect to our subject matter: civil rights or civil liberties (for example, the jurisprudence of Justice William Brennan on Eighth Amendment death penalty cases, or the opinions of Justice Antonin Scalia on reapportionment cases),

2. The second option is an examination of the judicial and/or political impact of a major Supreme Court decision or line of decisions upon a particular area of public policy (for example, the impact of Roe v. Wade and its progeny on the right to privacy, or the effects of Lemon v. Kurtzman on the establishment of religion).

Shortly before midterm---by the last week in January---I will expect each of you to have selected a topic after a conversation with me. The term paper will be due on FRIDAY, MARCH 9, by 4:00 p.m.

CLASS SCHEDULE

January 4 Introduction ---------------------------

January 5 Judicial Review OāBrien, pp. 24-37, 48-63 Marbury v. Madison, 1803 Eakin v. Raub, 1825

January 8 Judicial Interpretation pp. 72-122 What Do Judges DO? January 9 & 11 Supreme Court Procedures pp. 161- 215

January 12 & 15 Nationalization of the Bill pp. 297-313, 319-343 of Rights Barron v. Baltimore, 1833 Palko v. Connecticut, 1937 Adamson v. California, 1947 Rochin v. California, 1952 Griswold v. Connecticut, 1965

January 16 & 18 Freedom of Speech pp. 366-418 Schenck v. U.S., 1919 Gitlow v. New York, 1925 Dennis v. U. S., 1951 Brandenburg v. Ohio, 1969 Rust v. Sullivan, 1991

January 19 Obscenity & Pornography pp. 418-445, 449-454 Roth v. U.S.; Alberts v. California, 1957 Stanley v. Georgia, 1969 Miller v. California; Paris Adult Theater v. Slaton, 1973 Barnes v. Glen Theatre, Inc., 1991

January 22 & 23 Fighting Words & pp. 454-489 Offensive Speech Cohen v. California, 1971 F. C. C. v. Pacifica Fnd., 1978 Bethel School Dist. 403 v. Fraser, 1986 R. A. V. v. St. Paul, Mn. 1992 Wisconsin v. Mitchell, 1993

January 25 Libel & Slander pp. 489-504, 512-519 New York Times, v. Sullivan, 1964 Masson v. New Yorker Mag., 1991 Cox Broadcasting Co. v. Cohn, 1975

January 26 Free Press v. Prior Restraint pp. 535-553, 557-571 Near v. Minnesota, 1930 New York Times v. U. S., 1971 Branzburg v. Hayes, 1972 January 29 Free Press v. Fair Trial pp. 578-593 Nebraska Press Association. v. Stuart, 1976 Globe Newspapers v. Superior Court for Norfolk, 1982

January 30 Symbolic Speech pp. 593-619 West Virginia Bd. of Eduation v. Barnette, 1943 Tinker v. Des Moines Independent School District, 1969 Texas v. Johnson, 1989

February 5 Speech-plus-Conduct pp. 619-628 Walker v. City of Birmingham, 1967 Madsen v. Womenās Health Center. 1994 (handout) Hurley v. Irish-American Gay, Lesbian, & Bi-sexual Group of Boston, 1995 (handout)

February 6 & 8 Establishment of Religion pp. 644-693, 707-742 Everson v. Bd. of Ed. of Ewing, 1947 Engel v. Vitale, 1962 Abingdon School Dst. v. Schempp & Murray v. Curlett, 1963 Lemon v. Kurtzman, 1971 Co. of Allegheny v. A.C.L.U., 1989 Lee v. Weisman, 1992 Lambās Chapel v. Center Moriches, 1993

February 9 & 12 Free Exercise of Religion pp. 746-786 Sherbert v. Verner, 1963 Wisconsin v. Yoder, 1972 Oregon Employ. Div. v. Smith, 1990 Church of the Lukumi Babalu Aye v. City of Hialeah, 1993

February 13 & 15 Search & Seizure: Warrants pp. 787-828, 834-840, 846-858 Chimel v. California, 1969 Arizona v. Hicks, 1987 Terry v. Ohio, 1968 U. S. v. Sokolow, 1989 Minnesota v. Dickerson, 1993 Delaware v. Prouse, 1979 California v. Acevedo, 1991

February 16 Wiretapping & Surveillance pp. 881-902 Olmstead v. U. S., 1928 Katz v. U. S., 1967 California v. Ciraolo, 1986

February 19 Evidence: Exclusionary pp. 902-941 Rule Mapp v. Ohio, 1961 Nix v. Williams, 1984 U. S. v. Leon; Massachusetts v. Sheppard, 1984

February 20 Confessions pp. 942-973, 980-985, 995-1003 Miranda v. Arizona, 1966 Rhode Island v. Innis, 1980 Arizona v. Fulminante, 1991 Withrow v. Williams, 1993

February 22 Capital Punishment pp. 1089-1091, 1100-1122, 1129-1144, 1152-1160 Furman v. Georgia, 1972 McCleskey, v. Kemp, 1987 Payne v. Tennessee, 1991 Morgan v. Illinois, 1992

February 23 & 26 Right to Privacy: 1168-1208, 1221-1236 Reproductive Freedoms Griswold v. Connecticut, 1965 Roe v. Wade, 1973 Maher v. Roe, 1977 Planned Parenthood of Pennsylvania v. Casey, 1992

February 27 Right to Privacy: pp. 1236-1253, 210-215, 1253-1264 Personal Autonomy Bowers v. Hardwick, 1986 [Kentucky v. Wasson, 1992] Cruzan, by Cruzan v. Missouri Dept. of Health, 1990

February 29 Equal Protection: History of pp. 1265-1317 Racial Discrimination Dred Scott v. Sandford, 1857 The Civil Rights Cases, 1883 Plessy v. Ferguson, 1896 Shelley v. Kraemer, 1948

March 1, 4, & 5 Equal Protection: Efforts at pp. 1317-1338. 1340-1363, 1367-1373 Desegregation Brown v. Bd. of Educ. I, 1954 Brown v. Bd. of Educ. II, 1955 Cooper v. Aaron, 1958 Swann v. Charlotte-Mecklenburg Bd. of Ed., 1971 Milliken v. Bradley, 1974 U. S. v. Fordice, 1992 Missouri v. Jenkins, 1995 (handout)

March 7 & 8 Equal Protection: pp. 1373-1427, 1442-1445 Affirmative Action Regents of California v. Bakke, 1978 Richmond v. J. A. Croson, 1989 Metro Broadcasting v. F.C.C., 1990 N.E. Florida Associated General Contractors v. Jacksonville, 1993 March 11 & 12 Equal Protection: Gender pp. 1445-1477 Frontiero v. Richardson, 1973 Craig v. Boren, 1976 Michael M v. Sonoma County, 1981 Meritor Savings Bank v. Vinson, 1986 Harris v. Forklift Systems, Inc., 1993 (handout)