22SP_PS330A-Constitutional Law

February 9 -- Marbury v. Madison  (B&B p. 7)

February 14 -- McCulloch v. Maryland   (B&B p. 11)

February 14 -- NFIB v. Sibelius  (B&B p. 61)

March 14 -- Heart of Atlanta Motel v. United States (1964)  (B&B p. 44)

                     Katzenbach v. McClung (1964)  (B&B p. 45)

                     United States v. Lopez (1995)  (B&B p. 51)

                     United States v. Morrison (2000)  (B&B p. 55)

March 30 -- Ex parte Merryman (1861) (B&B p. 85)

                     Youngstown Sheet & Tube Co. v. Sawyer (1952) (B&B p. 89)

                     Korematsu v. United States (1944) (B&B p. 95)

April 4 --      Morrison v. Olson (1988) (B&B p.101)

                     NLRB v. Noel Canning (2014) (B&B p. 105)

April 18 -- Dred Scott v. Sandford  (1857)  (B&B p. 111)

                  The Slaughter-House Cases  (1873)  (B&B p. 123)

                  Lochner v. New York  (1905)  (B&B p. 145)

                  Muller v. Oregon  (1908)  (B&B p. 149)  (B&B p. 149) 

                   Adkins v. Children's Hospital  (1923)  (B&B p. 152)

                 West Coast Hotel v. Parrish  (1937)  (B&B p. 166)

                 Williamson v. Lee Optical  (1955) ( B&B p. 174)

Here is a list of the 65 cases the United States Supreme Court has agreed to hear during its current term.  For an interactive version of this list, see oyez.org/cases/2021.  For additional information about cases currently before the Court, along with helpful general information, see ballotpedia.org/Supreme_Court_cases_October_term_2021-2022.

The attachment below describes the Fourm on Supreme Court reform scheduled for Monday, February 9.  The Report of the Presidential Commission on the Supreme Court of the United States is available at whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf

It is emphatically the province of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.

                                                    Marbury v. Madison (1803) (Marshall, C.J.)

[W]hoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver. . .and not the person who first spoke or wrote them.

                                                   Bishop Hoadly's sermon, preached before King George I

                                                   March 1717

[W]e must never forget that it is a constitution we are expounding.  A constitution does not "partake of the prolixity of a legal code," and must be construed as "adapt[able] to the various crises of human affairs."

                                                  McCulloch v. Maryland (1819) (Marshall, C.J.)

[O]ur constitution. . .is an experiment, as all life is an experiment.

                                                 Abrams v. U.S. (1919) (Holmes, J., dissenting)

The Pope?  How many divisions will he have contributed to victory?

                                                Attributed (probably apocryphally) to Joseph Stalin 

                                                December 1943, in planning for the Yalta Conference

[T}he judiciary, from the nature of its functions, will always be the least dangerous branch of government. . . .It may truly be said to have neither force nor will, but merely judgment.

                                                 Federalist No. 78

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

                                                 Alexis de Tocqueville, Democracy in America (1835)

The Imperial Judiciary lives.

                                                  Planned Parenthood of Southwestern Pa. v. Casey (1992)

                                                  (Scalia, J., dissenting from decision upholding abortion rights)

[T]he Court typically decides cases in light of what the Justices take to be the Constitution's largest purposes and the values that it presupposes as well as those that it more expressly embodies.

                                                  Richard H. Fallon, Jr., The Dynamic Constitution

Supreme Court Justices typically decide how the Constitution is "best" interpreted in light of history, precedent, and considerations of moral desirability and practical workability.

                                                  Richard H. Fallon, Jr., The Dynamic Constitution

President Biden fulfilled a campaign promise with the creation of a bipartisan commission on judicial reform, tasked to study and, if appropriate, recommend improvements to the operation of the federal judiciary.  The Presidential Commission on the Supreme Court submitted its Final Report in December 2021.  Among the issues and possible reforms the Commission considered:  limits on the term of service for Supreme Court justices.

In a reflection of 750 - 1,500 words, comment on the following:

•   Would term limits for Supreme Court justices present constitutional infirmities under Article III?  If so, could Congress fashion term limits in a manner that would not require an   amendment to the Constitution?

• Suppose you were a member of the Commission.  In your view, what are the strongest arguments for and against term limits for Supreme Court justices?

The Commission's Final Report should be a primary source for your reflection.  To aid your consideration of the subject, below is a sampling of scholarly analysis and informed political opinion.  You should read this material as well, but you are not confined to it.  I encourage you to consider other sources (there's no dearth of analysis and opinion on the subject).

Reflections should be submitted by e-mail, in Word format, and are due by midnight on March 3.

The powers delegated by the proposed Constitution to the federal government are few and defined.

                                Federalist No. 45

Can you tell me . . . has there been anything in our recent history . . . where it appears that Congress made a considered judgment that it could not reach a particular subject?

                               Question to counsel by Justice Kennedy -- followed by laughter -- during oral 

                               argument in U.S. v. Lopez (1995)

Sixty years ago, constitutional scholar Alexander Bickel wrote that the Supreme Court "labors under the obligation to succeed." *  This somewhat enigmatic observation speaks to the ongoing (and never wholly resolvable) debate about how the Court may best gain and maintain public acceptance of its decisions -- many of which involve contestable substantive judgments.

In a 750 - 1500 word reflection, comment on what you've so far learned about how Supreme Court justices have approached the task of interpreting and applying -- or, perhaps more accurately, implementing -- the Constitution.  You may consider, among other things, the virtues and infirmities of interpretive constructs such as original intent, original or public meaning, textualism, and pragmatism, but you should also consider the impact of higher or moral law, political ideology, public opinion, constitutional purposes and values (those that the Constitution presupposes and those that it more expressly embodies), or other factors that you think relevant to the constitutional ideal of "a government of laws, and not of men."  Marbury v. Madison, 5 U.S. 137 (1803).  Where applicable, illustrate your comments by reference to Supreme Court decisions you've thus far read (or read about).

Your reflection, in Word format, is due by midnight on Tuesday, March 15.

*  Alexander M. Bickel, The Least Dangerous Branch:  The Supreme Court at the Bar of Politics (Bobbs-Merrill, 1962), at 239.

Please refer to the attached guidelines when writing your research paper.  Case names should be italicized and cited in the format found in the course textbooks.  Quoted material from cases should identify the page number(s) at which the material appears (e.g., Smith v. Jones, 480 U.S. 100, 107-08 (1980); or, if you've already cited the case, Smith v. Jones, 480 U.S. at 107-08; or, if the quoted material immediately follows the case citation, Id. at 107-08.

Energy in the Executive is a leading character in the definition of good government.  It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws. 

                                                 Federalist No. 70

A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest.  The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.  To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.

                                               Thomas Jefferson:  Writings

[W]hile the Constitution protects against invasions of individual rights, it is not a suicide pact.

                                                Kennedy v. Mendoza-Martinez (1963)

Last year, historian Jill Lepore published an article exploring the work of fellow historian Linda Colley, who studies the origins, nature, and purposes of constitutions, including the United States Constitution.  Colley's research challenges the widely held view that the Constitution was the product of Enlightenment concepts of freedom and equality.  She argues instead that constitutions, including ours, most often reflect the efforts of leaders to address more prosaic (albeit sometimes existential) threats to the societies they lead.

Colley's argument raises provocative questions about how we should view the Constitution.  Does it make sense to venerate the document as wisdom for the ages?  If not, should we be more amenable to correcting what may be its flaws or bringing its provisions more into line with a society that the framers could not have envisioned?

After reading Lapore's article (linked below), comment on Colley's and Lapore's views as they relate to the structure of the government established by the Constitution.  Your comments should focus in particular on what problem(s), if any, might be solved, and what problem(s), if any, might be created or exacerbated, by altering the process for amending the Constitution.

Your reflection (750 - 1500 words) is due before midnight on Friday, April 8.

The Constitution was essentially an economic document based upon the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities.

              Charles A. Beard,  An Economic Interpretation of the Constitution of the United States

              (New York: Macmillan, 1913), 324

[A] constitution is not intended to embody a particular economic theory. . . . It is made for people of fundamentally differing views.

             Lochner v. New York  (1905) (Holmes, J. dissenting)

[T]he principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy. . .has as its corollary that the states are not separable economic units. . . .[A] state may not use its admitted powers to protect the health and safety of its people as a basis for suppressing competition.

          H.P. Hood & Sons, Inc. v. DuMond  (1949) (Jackson, J.)

Occasionally the Supreme Court accommodates this course by issuing a decision on a subject mentioned in class on the same day.  Yesterday's decision in Louisiana v. American Rivers, 596 U.S. ___ (2022) was just such a serendipitous occasion.

In American Rivers, the Court granted an emergency application to stay a district court order invalidating a Trump administration Clean Water Act rule which denied states the right to reject projects that would pollute streams and wetlands.  The Court's order, issued without merits briefing or oral argument, reinstates the challenged rule while the case is on appeal.

Four justices -- Kagan, Sotomayor, Breyer, and -- wait for it -- Roberts, dissented.  Writing for the dissenters, Justice Kagan took the majority to task for "render[ing] the Court's emergency docket not for emergencies at all.  The docket becomes only another place for merits determinations -- except made without full briefing and argument."

Increasing use of the so-called shadow docket has raised concerns among both professional and lay Court observers. American Rivers surely will heighten those concerns.  The Court's order is linked below.  

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . .

       --   Religion Clause of the First Amendment to the Constitution

[Freedom of religion] embraces two concepts, -- freedom to believe and freedom to act.  The first is absolute but, in the nature of things, the second cannot be.

      --  Cantwell v. Connecticut (1940)

There is hardly any political question in the United States that sooner or later does not turn into a judicial question.  From that, the obligation that the parties find in their daily polemics to borrow ideas and language from the judicial system.  Since most public men are or have formerly been jurists, they make the habits and the turn of ideas that belong to jurists pass into the handling of public affairs.

                                --  Alexis de Tocqueville, Democracy in America (1835)

Inherit the Wind, a 1960 film based on the Scopes Monkey Trial (State v. Scopes (1925)), dramatizes one of the America's most controversial cultural (and inevitably, as Tocqueville observed, legal) issues -- the clash between secularism and religious fundamentalism.  Here, the skirmish involved the Butler Act, a Tennessee law that made it a crime to teach the theory of human evolution in the state's public schools.

Foreshadowing reality TV, the Scopes trial took on the trappings of a theatrical production, staged by the town of Dayton, Tennessee and the American Civil Liberties Union.  Each of the "producers" in this unlikely partnership had its own objectives:  Dayton hoped to capitalize on the intense public interest in the trial, which promised to bring journalists and spectators (and money) to the town; the ACLU sought to vindicate the belief that science and religion could co-exist in educational and public life without the state putting its thumb on the scales of either. 

John Scopes, a local high school teacher, agreed to test the legality of the Butler Act by teaching Charles Darwin's theory of evolution to his students.  Tennessee responded by charging him with violating the Act, and the stage was set.  The trial pitted against each other two of the most formidable advocates of the time:  for Tennessee, three-time presidential candidate and former Secretary of State William Jennings Bryan (known by friend and foe as "the national tear duct"); and for Scopes, the country's foremost criminal defense lawyer, Clarence Darrow.  (The Bryan and Darrow characters are played, under fictitious names, by the eminent actors Frederic March and Spencer Tracy.  Their performances, to say nothing of those by such luminaries as Gene Kelly (Singin' in the Rain, An American in Paris)  and lesser lights Harry Morgan (Dragnet, M*A*S*H) and Dick York (Bewitched), make the film worth watching, even for students who care little about politics or constitutional law.)

The trial unfolds as a kind of morality play, complete with allegorical oration by the lawyers and supported by a judge (Morgan), a journalist based loosely on H.L. Mencken (Kelly), and an audience of spectators who at times serve as commentators and at times as a chorus.  But, for our purposes, the film also explores the tension between First Amendment separationists and accommodationists that animates the Establishment, Free Exercise, and Free Speech Clauses.

In a reflection of 750 - 1,000 words, due by midnight on May 6, comment on whether and, if so, how the film informs your understanding of what the Establishment, Free Exercise, and Free Speech Clauses mean and how the Supreme Court has sought to navigate and balance interests among these often competing clauses.

Congress shall make no law. . .abridging the freedom of speech.

                          -- Free Speech Clause of the First Amendment

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.

                         -- Schenck v. United States (1919) (Holmes, J.)