Haverford College

Department of History

History 343a: Topics in American Intellectual History

American Constitutional Law: History, Theory, Sociology, and Politics, 1787-Present

Our duty...is not to do justice, but to apply the law and hope that justice is done.
Chief Justice Warren Burger, Bifulco v. United States, 1980

In a highly differentiated society, the primary focus of the integrative function is found in its system of legal norms and the agencies associated with its management, notably the courts and the legal profession.
Talcott Parsons, 1961

[T]he courts are nonmajoritarian institutions that rely for their legitimacy on myths about the objectivity and non-political nature of judicial decision making. This in turn lends a broader legitimacy to social and power relations that are reflected, articulated, and en-forced by the courts.
David Kairys, 1982

This seminar will reconstruct the development and functioning of constitutional law in American society from 1787 to the present. Our working assumption will be that law is at once a primary language of public discourse and an institutionalized power-knowledge system. As such, the law articulates, reflects and enforces social norms on the one hand, and rationalizes their relation to a changing economy and culture on the other.

Obliging law and history to interrogate each other, we will review the major episodes in American constitutional history; identify the salient issues in constitutional law; explore the relation between the sociology of the legal profession and the functioning of the American legal system; and consider critically the ideological implications of different theories of jurisprudence.

Information

Time & Place: Tuesday 1:30-4:00 PM, Hall 006.
Office Hours: 1 College Lane Apt. 1, by appointment, or Faculty Lounge, Hall Building.
Phone/Email: [610] 649-7841; pjeffers@haverford.edu

Students who think they may need accommodations in this course because of the impact of a disability are encouraged to meet with me privately early in the semester. Students should also contact Rick Webb, Coordinator, Office of Disabilities Services (rwebb@haverford.edu, 610-896-1290) to verify their eligibility for reasonable accommodations as soon as possible. Early contact will help to avoid unnecessary inconvenience and delays.

Course Requirements and Grading Protocol

1) Good citizenship and regular attendance: 5% of grade.

2) Close reading and careful discussion of class texts: 15% of grade.

3) Foundational Analytical Essay [8-10 pp]: “Reviewing the Question of Judicial Review.” Due September 27, 2005: 20% of grade

4) Organize and manage [with selected classmates] three to four discussions of "canonical" Court cases: 15% of grade.

5) Short written exercise [2-4 pp.] discussing "substantive due process" and "substantive equal protection." What are the distinguishing features of each "rule of [constitutional] construc-tion?" Due November 8, 2005: 5% of grade.

6) Seminar Paper [15-20 pp.] on a topic to be negotiated. Prospectus and Starter Bibliography due November 15, 2005: 2% of grade. Seminar Paper due December 16, 2005 at 12 noon: 38% of grade.

Core Texts

David Kairys, ed., The Politics of Law: A Progressive Critique, Third edition (1998)

David M. O'Brien, ed., Constitutional Law and Politics, Volume 2, Sixth edition (2004)

William M. Wiecek, Liberty Under Law: The Supreme Court in American Life (1988)

#Xeroxed# texts [to be distributed in class: see Calendar of Readings]

Calendar of Readings

August 30. Opening Remarks: Law as a Cultural Optic and a "Language" of Public Discourse

a] Alternative Readings of the Social Meaning[s] of "Law:" Warren Burger, Talcott Parsons, and David Kairys on the legal system, the courts, and on "Justice" as an enabling civic ideal...

b] Looking ahead to your first important exercise. A Foundational Analytical Essay, “Review-ing the Question of Judicial Review,” is due in class on September 27, 2005. See below, pp. 4-5.

September 6. Constitution and Courts, Institutions and Procedures, Politics and Pedagogy: What's the Law About?

O'Brien, ed., Constitutional Law and Politics, Volume 2, Sixth edition (2004), pp. 1-14 [United States Constitution, through the10th Amendment]; *skim* pp. 103-128, and 170-186.

Wiecek, Liberty Under Law (1988), pp. 1-4.

David Kairys, “Introduction,” in David Kairys, ed., The Politics of Law: A Progressive Critique, Third edition (1998), pp. 1-20.

#J. M. Balkin and Sanford Levinson, "Legal Canons: An Introduction," in J. M. Balkin and San-ford Levinson, Legal Canons [2000], pp. 3-31.#

Duncan Kennedy, "Legal Education as Training for Hierarchy," in David Kairys, ed., The Politics of Law: A Progressive Critique, Third edition (1998), pp. 54-75.

Supplementary Reading:

Wiecek, Liberty Under Law (1988), pp. 5-31 [challenging, but recommended for alumnae/i of History 255]

Robert W. Gordon, "Some Critical Theories of Law and Their Critics," in David Kairys, ed., The Politics of Law: A Progressive Critique, Third edition (1998), pp. 641-661.

Frances Olsen, "The Sex of Law," in David Kairys, ed., The Politics of Law: A Progressive Cri-tique, Third edition (1998), pp. 691-707.

Pierre Schlag, "Law and the Postmodern Mind: Intellectualism," Cardozo Law Review, vol. 16 [1995]

September 13. Republicanism, Constitutional Law, and the Federal Court System, 1787-1835:
Background and Legacy of the Marshall Era.

#Jack M. Balkin, "The Use that the Future Makes of the Past: John Marshall's Greatness and Its Lessons for Today's Supreme Court Justices," William and Mary Law Review, vol. 43, no. 4 [2002]: 1321-1338.#

Wiecek, Liberty Under Law (1988), pp. 32-55.

O'Brien, ed., Constitutional Law and Politics, Volume 2, Sixth edition (2004), pp. 23-42, and 46-55 [Marbury v. Madison (1803)].

#O'Brien, ed., Constitutional Law and Politics, volume 1 (1991), pp. 447-475 [McCulloch v. Maryland (1819); Gibbons v. Ogden (1824)].#

Supreme Court Cases:

Marbury v. Madison (1803); McCulloch v. Maryland (1819); Gibbons v. Ogden (1824).

September 20. Commerce, Federalism and Private Property: Public Law from Marshall to Taney.

Wiecek, Liberty Under Law (1988), pp. 56-73 ["...a doctrine that retains its vitality into our own time."]

O'Brien, ed., Constitutional Law and Politics, Volume 2, Sixth edition (2004), pp. 220-240 [Fletcher v. Peck (1810); Dartmouth College v. Woodward (1819); Charles River Bridge v. War-ren Bridge (1837)].

#O'Brien, ed., Constitutional Law and Politics, volume 1 (1991), pp. 540-552, and 559-564 [Cooley v. Board of Wardens (1851)], and 600-609 [Martin v. Hunter's Lessee (1816)].#

Supreme Court Cases:

Fletcher v. Peck (1810); Martin v. Hunter's Lessee (1816); Dartmouth College v. Woodward (1819); Charles River Bridge v. Warren Bridge (1837); Cooley v. Board of Wardens (1851).

September 27. Foundational Analytical Essay: "Reviewing the Question of Judicial Review."

In a well-reasoned 8-10 page essay based on (1) William M. Wiecek, Liberty Under Law: The Supreme Court in American Life (1988), pp. 1-4, and 181 ["In periods when decisions..."]-193; on (2) David M. O'Brien, ed., Constitutional Law and Politics, Volume 2, Sixth edition (2004), pp. 23-42, 46-55, 67-68, 71-88, and 92-96; and on (3) the texts below, *identify the political, le-gal and theoretical issues raised by the centrality of judicial review in American jurispru-dence.* [You may want to consider Wiecek, Liberty Under Law (1988), pp. 5-31 as well]

Then--in light of Richard Posner's and Steven Smith's subversive suggestions below—indicate what position *you* take in the on-going debate about alternative theories of judicial discretion [review]?

#Erwin Chemerinsky, "The Price of Asking the Wrong Question: An Essay on Constitutional Scholarship and Judicial Review," Texas Law Review, 62 (1984), pp. 1207-1261.#

#Andrew L. Kaufman, "Judges or Scholars: To Whom Shall We Look for Our Constitutional Law?" Journal of Legal Education, 37 (1987), pp. 184-202.#

#Richard A. Posner, Overcoming Law [1995], pp. 33-35, 39-80.#

#Steven D. Smith, "Idolatry in Constitutional Interpretation," in Paul F. Campos, Pierre Schlag, and Steven D. Smith, Against the Law [1996], pp. 157-159, 169-179, and 186-190.#

Be prepared to discuss [a] your “reading” of the issues raised by the assignment and [b] your preferred model[s] of judicial review.

October 4. Slavery, Race, and the Constitution, 1787-1890.

Wiecek, Liberty Under Law (1988), pp. 73-81, and 93 ["The term Reconstruction..."]- 101 ["...dismantling the structure of the freedmen's rights."]

O'Brien, ed., Constitutional Law and Politics, Volume 2, Sixth edition (2004), pp. 15-16 [“Re-construction” Amendments], 1352-1363 [Dred Scott v. Sanford (1857)], 304-310 ["...into the amendment's due process clause."], and 1363-1372 [Civil Rights Cases (1883)].

Supplementary Reading:

Harold M. Hyman and William M. Wiecek, Equal Justice Under Law: Constitutional Development 1835-1875 (1982), pp. 1, 13-19, 86-202, 386-438.

Supreme Court Cases:

Dred Scott v. Sanford (1857); Civil Rights Cases (1883).

Fall Break: Friday October 7 at 4:00pm through Sunday October 16, 2005.

October 18. Republicanism in Retreat: The State Action Doctrine, Plessy v. Ferguson (1896), and Racist Jurisprudence.

Wiecek, Liberty Under Law (1988), pp. 101 ["In the late nineteenth century..."]-109.

O'Brien, ed., Constitutional Law and Politics, Volume 2, Sixth edition (2004), pp. 1336-1341 ["...a tool for the Court to reach and ban private racial discrimination."], and 1372-1376 [Plessy v. Ferguson (1896)].

Supplementary Reading:

Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (1987)

Supreme Court Case:

Plessy v. Ferguson (1896).

October 25. NO CLASS

An important History 400a [Senior Thesis Seminar] assignment is due on this date…

November 1. The Science of Law and the Legal Profession: Formalist Jurisprudence, 1873- 1937.

Wiecek, Liberty Under Law (1988), pp. 110-139.

#O'Brien, ed., Constitutional Law and Politics, volume 1 (1991), pp. 475-492 [United States v. E.C. Knight (1895); Hammer v. Dagenhart (1918)].#

O'Brien, ed., Constitutional Law and Politics, Volume 2, Sixth edition (2004), pp. 252-270 [Slaughter House Cases (1873)], and 273-278 [Lochner v.New York (1905)].

Supplementary Reading:

Michael Les Benedict, "Laissez-Faire and Liberty: A Reevaluation of the Meaning and Origins of Laissez-Faire Constitutionalism," Law and History Review (Fall 1985), pp. 293-331.

Peter Gabel and Jay Feinman, "Contract Law as Ideology,” in David Kairys, ed., The Politics of Law: A Progressive Critique, Third edition (1998), pp. 497-510.

Supreme Court Cases:

Slaughter House Cases (1873); United States v. E.C. Knight (1895; Lochner v. New York (1905); Hammer v. Dagenhart (1918).

November 8. Revolt Against Formalism: The Modern Judiciary and the American Legal Academy, 1937 to the Present

NB: Short written exercise [2-3 pp.] based on the Wiecek and O’Brien [pp. 1325-1335 only] readings due. Discuss the distinguishing features of "substantive due process" and" substantive equal protection." In what respects is each "rule of [constitutional] construction" useful? dangerous?

#O'Brien, ed., Constitutional Law and Politics, volume 1 (1991), pp. 522-524, and 492-508 [Na-tional Labor Relations Board v. Jones & Laughlin Steel Corporation (1937); United States v. Darby Lumber Company (1941)].#

O'Brien, ed., Constitutional Law and Politics, Volume 2, Sixth edition (2004), pp. 1325-1335.

Wiecek, Liberty Under Law (1988), pp. 156-181 ["...and the values clustered around majoritarian democracy."]

Supreme Court Cases:

National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937); United States v. Darby Lumber Company (1941).

November 15. Prospectus and Starter Bibliography for Seminar Paper Due.

Be prepared to discuss your seminar paper topic. What is particularly interesting and/or significant about your topic? How is your topic related to the constitutional issues raised so far in our readings?

November 22. Making Civil Rights Law, I: The Brown Decision and Its Aftermath.

O'Brien, ed., Constitutional Law and Politics, Volume 2, Sixth edition (2004), pp. 1340 ["The court and the country..."]-1352, 1382-1410 [Brown v. Board of Education (1954); Brown II (1955)], and 1416-1424 [Swann v. Charlotte-Mecklenberg Board of Education (1971); Milliken v. Bradley (1974)].

#Jack M. Balkin, ed., What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision [2001], Part I, pp. 3-74.#

Supplementary Reading:

Jack M. Balkin, ed., What Brown v. Board of Education Should Have Said: The Nation's Top Legal Experts Rewrite America's Landmark Civil Rights Decision [2001], Part II, pp. 77-213.

Supreme Court Cases:

Brown v. Board of Education (1954); Brown II (1955); Swann v. Charlotte-Mecklenberg Board of Education (1971); Milliken v. Bradley (1974).

November 29. Constitutional Flashpoint. Privacy and Reproductive Rights: Whose Business is It?

O'Brien, ed., Constitutional Law and Politics, Volume 2, Sixth edition (2004), pp. 1237-1251 [Roe v. Wade (1973)]

Supplementary Reading:

Frances Olsen, "The Sex of Law," in David Kairys, ed., The Politics of Law: A Progressive Critique, Third edition (1998), pp. 691-707.

Supreme Court Case:

Roe v. Wade (1973)

December 6. Making Civil Rights Law, II: Arguing Affirmative Action.

O'Brien, ed., Constitutional Law and Politics, Volume 2, Sixth edition (2004), pp.1435-1451 [Regents of the University of California v. Bakke (1978)].

Charles R. Lawrence III, “Race and Affirmative Action: A Critical Race Perspective,” in David Kairys, ed., The Politics of Law: A Progressive Critique, Third edition (1998), pp. 312-327.

Supplementary Reading:

Alan Freeman, “Antidiscrimination Law from 1954 to 1989: Uncertainty, Contradiction, Rationalization, Denial,” in David Kairys, ed., The Politics of Law: A Progressive Critique, Third edition (1998), pp. 285-311.

Supreme Court Case:

Regents of the University of California v. Bakke (1978)

NB: Seminar Papers Are Due December 16, 2005 at 12 Noon.