Brandeis University

Politics 115b

Spring 2017

Seminar in Constitutional Law and Theory

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Professor Peter Woll's

Constitutional Law Seminar

Politics 115b On-Line

Spring 2017







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Madison's Notes on the Debates of the Constitutional Convention of 1787

Madison's Notes on the Debates of the Constitutional Convention of 1787




Constitutional Law Seminar On-line



Politics 115b

Spring, 2010

CONSTITUTIONAL LAW SEMINAR



This seminar focuses upon the role of the Supreme Court and the way in which it has shaped our political system through different methods of judicial review.

The source text is Daniel A. Farber et al, Constitutional Law, 4th ed.. (Order text)

Students will be given individual case assignments for each class. Class discussions will revolve around cases students present. The text assignments will provide a common knowledge for the seminar, enabling all students to comment directly upon the cases individually presented.

Class discussion and participation will count for 60 percent of the grade. Class participation will include short papers students will write periodically on assigned cases and topics that they will present to the class. A major final paper will count for 40 percent of the grade.

Each week we will have a focus topic based upon cases and readings in the text. We will branch out from there as students will use web resources to do in depth examination and analysis or cases related to the focus topic.

Jan. 20

Course overview and introductory comments.

Jan. 25-Feb 1

A. Originalist Theories of Judicial Review. 126 ff.

1. Textualist Theory

2. Original Understanding

Robert H. Bork, The Tempting of America: The Political Seduction of the Law

B. Legal Process Theories of Judicial Review. 146ff

John Hart Ely, Democracy and Distrust: A Theory of JudicialReview

Notes on Representation Reinforcement and

Public Choice Theory.

Problem 2-2: Representation-Reinforcing Judicial Review .

Note on Other Proceduralist Theories of Judicial Review

Note on the "Passive Virtues" and "Minimalist" Review.

B. Legal Process Theories of Judicial Review. 146ff

1.Republican Theories: Translation and Constitutional Synthesis.

Bruce Ackerman, Constitutional Politics/Constitutional Law

Note on Constitutional Moments and Republican Synthesis

2. Radical Feminism and Critical Race Theory

Robin West, Constitultional Skepticism

Note on Constitutional Skepticism and Returning Constitutional Law to "The People"

3. Common Law and Pragmatic Theories.

Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation

Note on Pragmatism as Another Resource for Common Law Constitutionalism

James Bradley Thayer, John Marshall

A. Bases for Judicial Review

Marbury v. Madison 96

Notes on Marbury and the Power of Judicial Review. 96

McCulloch v .Maryland 815

Notes on Constitutional Reasoning in McCulloch: Original Intent, Constitutional Structures

and Representation Reinforcement. 824

B. The Court's Supremacy in Constitutional Interpretation? 94

Cooperv.Aaron 101

Edwin Meese, III, The Law of the Constitution. 102

Are Other Government Officials Required To Follow the Supreme Court's Interpretation of the Constitution? 103

Feb. 3-Feb. 15

Focus: Freedom of Religion

Focus Cases to be Assigned Reynolds V. United States, 98 U.S. 145 (1878)

Cantwell V. Connecticut, 310 U.S. 296 (1941)

Minersville School District v. Gobitis, 310 U.S. 586 (1940)

West Virginia Board of Education v. Barnette, 319 U.S. 624

Braunfeld V. Brown, 366 U.S. 599 (1961)

Feb. 17-Mar. 8

Section 6. The Religion Clauses 754ff

A. Free Exercise

Stansbury v. Marks

Notes on Stansbury

Wisconsinv. Yoder

Notes on Yoder and Religious Exemptions

Employment Division, Department of Human Resources v. Smith

Michael McConnell, Free Exercise Revisionism and the Smith Decision

Notes on Smith and Free Exercise

Church of the Lukumi Babalu Aye, Inc. v. Hialeah

City of Boerne v.Flores

Mar. 9-19

B. The Establishment Clause 768ff

1. Basic Premises

Everson v. Board of Education

Wallace v. Jaffree

Notes on Everson, Jaffree, and Establishment Clause Analysis

Lemon v. Kurtzman

2. Governmental Endorsement of Religion

County of Allegheny v. American Civil Liberties Union

Capitol Square Review and Advisory Board v. Pinette

Notes on Allegheny County and the Lemon Debate

Note on the School Prayer Cases

Lee v. Weisman

Notes on Weisman and Establishment Doctrine

Santa Fe Indep. School Dist. v. Doe.

Board of Education of Kiryas Joel Village School Dist.v.Grumet

3. Financial Support of Religious Programs.

Zelman v. Simmons-Harris

Notes on

Zelman

Rosenberger v. Rector and Visitors of the University of Virginia

Good News Club v. Milford Central School

.


Mar. 25-Apr. 1

The First Amendment: Freedoms of Speech and Press ?561

Chapter 6. The First Amendment 613


Section 1. Free Speech and Competing Values 613

Note on the Original Understanding of Freedom of Speech 614

Masses Publishing Co. v. Patten 631

Schenck v. United States 665

Abrams v. United States 666

Texas v. Johnson 617

R.A.V. v. City of St. Paul 619

Notes on First Amendment Values Implicated in Johnson and R.A.V. 624

United States v. O'Brien 628

Note on the "Imperial" First Amendment 629

Problem 6-1: Drafting a Rule Regulating Law School Posters 630

Section 2. Regulation of Harmful Messages 631

Apr. 2

Subversive Speech from 1920-1960 637

Gitlow v. New York 637

Whitney v. California 669

Brandenburg v. Ohio 641

Notes on Brandenburg 642

Apr. 6-8

B. Defamation and Privacy 645

New York Times Co. v. Sullivan 678

Gertz v.Robert Welch, Inc. 649

Hustler Magazine v. Falwell 649

Notes on New York Times and Libel Law 683

Notes on Post-New York Times Developments in Defamation Law 652

Bartnicki v. Vopper 657

Notes on Bartnicki 659

Problem 6-2: Free Speech versus Privacy 660

Apr. 9 (selected cases)

April 13 (students begin paper presentations)

C. Obscenity and Indecent Speech 661

Millerv.California 661

Paris Adult Theatre Iv. Slaton 664

Notes on Regulating Sexually Explicit Materials 665

Butler v. Regina 668

A Note on Feminist Anti-Pornography Theories 669

Problem 6-3: Feminist Anti-Pornography Ordinances 670

City of Renton v. Playtime Theatres, Inc. 671

Notes on Renton 674

Barnes v. Glen Theatre, Inc. 67

City of Erie v. Pap's A.M 676

selected cases

D. Fighting Words, Captive Audiences, and Hate Speech 677

1. The Fighting Words Exception, 677

Chaplinsky v.New Hampshire 677

Cohen v. California 677

Notes on Cohen and Offensive Speech 681

2. An Exception for Hate Speech? 682

Beauharnai sv.Illinois 682

Wisconsinv.Mitchell 683

Note on the Hate Speech Debate 684

Problem 6-4: University Regulation of Hate Speech 686

Problem 6-5: May the State Prohibit Sexually HarassingRemarks? 688

A. Prior Restraints and Permit Systems 754

Near v .Minnesota 735

Shuttlesworth v. City of Birmingham 755

New York Times Co. v. United States 756

Problem 6-14: The H-Bomb Case 757

Madsen v. Women's Health Center, Inc. 757

Notes on Madsen 761

April 20

Summary and Introduction of Student Papers

April 20-30 (last class day)

Student presentation of papers.

Go to Beginning of Syllabus





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