Page 1Page 2Page 3Page 4Page 5Page 6Page 7Page 8Page 9Page 10Page 11Page 12Page 13Page 14Constitutional LawSections 1 & 2Professor FlemingSpring 2007SyllabusMaterials for CourseWalter F. Murphy, James E. Fleming, Sotirios A. Barber & Stephen Macedo, AmericanConstitutional Interpretation (3d ed. 2003) (“ACI”)Supplemental Readings (“SR”)ACI is available in the Bookstore. SR will be available on Blackboard. The Student UserGuide to Fordham Blackboard Courses is appended on pages 13-14 of this Syllabus. Both ACI andSR will be on reserve in the Library.Administrative DetailsOffice: Room 229Telephone: 212-636-6839Fax: 212-636-6899Email: [email protected] Hours: 1:00-2:00 Monday (before class) or by appointmentFinal Examination: Wednesday, May 9, 9:30-12:30 (limited open book exam: no copies ofanswers to previous exams that were on reserve in the Library are permitted in the exam room)AssignmentsThere will be 28 class meetings during the semester, and there are 28 assignments formulatedbelow. Some assignments will take more, and others less, than a full class session, but this syllabusshould serve to indicate the overall pace and emphases of the course.Most of the assigned cases and materials are in ACI, and are noted in the syllabus with pagenumbers. The remaining assigned cases and materials are in the Supplemental Readings availableon Blackboard, and are noted with “SR.” The assigned introductory chapters in ACI are noted withpage numbers preceded by “ACI.” Entries on the syllabus with no assigned pages indicate topics onwhich I shall lecture briefly.2General Outline I. The Problems of Constitutional Interpretation: What is the Constitution? Who MayAuthoritatively Interpret It? and How is It to be Interpreted? II. Who May Authoritatively Interpret the Constitution?A. For the National Government?B. For the Federal System? III. How is the Constitution to be Interpreted? Keeping Political Processes OpenA. Freedom of Political CommunicationB. Political Participation IV. How? Treating Equals Equally1. Historical Background and Deferential Scrutiny2. Suspect Classifications: Race and Ethnicity3. Affirmative Action4. Somewhat Suspicious Classifications: Gender5. Other Suspect or Somewhat Suspicious Classifications?6. Fundamental Rights and Interests V. How? General TheoriesA. Interpretivism/OriginalismB. Protecting Fundamental RightsC. Deferring to the Representative ProcessD. Reinforcing the Representative Process VI. How? Protecting Fundamental RightsA. Economic LibertiesB. Personal Liberties1. Privacy2. Abortion3. Family4. Homosexuality5. Euthanasia VII. How? Inferences from Structures and RelationshipsA. Separation and Sharing of Powers within the National GovernmentB. Sharing of Powers within the Federal SystemVIII. Conclusion: Courts, Legislatures, and the Vindication of Constitutional Rights and Powers3Specific AssignmentsI. THE PROBLEMS OF CONSTITUTIONAL INTERPRETATION:WHAT IS THE CONSTITUTION?WHO MAY AUTHORITATIVELY I NTERPRET IT?AND HOW IS IT TO BE INTERPRETED?Background ReadingA. Introduction: What, Who, and HowACI, 1-21, 43-74January 8B. Competing Conceptions of What, Who, and HowPlanned Parenthood v. Casey, 1404-37II. WHO MAY AUTHORITATIVELY INTERPRET THE CONSTITUTION?January 10A. For the National Government?1. IntroductionACI, 274-892. Competing Conceptions of WhoHamilton, Federalist No. 78, 299-303Marbury v. Madison, 303-04, 312-20Jefferson Instructs a Federal Prosecutor, 320-22Jackson’s Veto of the Bank Bill, 326-27Lincoln’s First Inaugural Address, 328-32Roosevelt’s Speech on Reorganizing the Federal Judiciary, 332-37United States v. Nixon, 337-41Selected materials on Presidential Signing Statements, SR 1January 15: No class (Martin Luther King Day)4January 17B. For the Federal System?1. IntroductionACI, 359-642. Competing Conceptions of WhoNullifying and Reaffirming Brown v. Board of Education, 377-80Cooper v. Aaron, 380-84Remarks of Attorney General Meese on Cooper v. Aaron, SR 23. The Presidential Election ControversyBush v. Gore, 1558-77Selected materials on the Presidential Election Controversy, SR 3III. HOW IS THE CONSTITUTION TO BE INTERPRETED?KEEPING POLITICAL PROCESSES OPENA. Freedom of Political CommunicationJanuary 221. IntroductionACI, 692-7012. The Structural Role of the First AmendmentNew York Times v. Sullivan, 704-123. Advocacy or Incitement of Unlawful ActionWhitney v. California, 713-19Dennis v. United States, 719-28Brandenburg v. Ohio, 728-33January 244. Fighting Words and Offensive Expression5Chaplinsky v. New Hampshire, 733-36Cohen v. California, 762-665. Defamation of GroupsBeauharnais v. Illinois, 736-42R.A.V. v. St. Paul, 742-61January 296. Harmful ExpressionAmerican Booksellers Association, Inc. v. Hudnut, 767-747. The Right Not to SpeakMinersville School District v. Gobitis, 1266-75West Virginia v. Barnette, 1275-828. Symbolic ExpressionUnited States v. O’Brien, 775-80United States v. Eichman, 780-86B. Political ParticipationJanuary 311. IntroductionACI, 796-8052. The Right to Vote and Have One’s Vote Counted EquallyReynolds v. Sims, 814-24Harper v. Virginia State Board of Elections, 238-43, 824Bush v. Gore, 1558-77 (again)February 53. The Right to Associate6NAACP v. Alabama, 847-52Roberts v. United States Jaycees, 853-62Boy Scouts of America v. Dale, 863-724. Money and PoliticsBuckley v. Valeo, 872-79McConnell v. Federal Election Commission, SR 4IV. HOW? TREATING EQU A LS EQUALLYA. The Problems of Equal Protection: Suspect ClassificationsFebruary 71. IntroductionACI, 895-904, 906-172. Historical BackgroundDred Scott v. Sandford, 207-18Strauder v. West Virginia, 919-23Yick Wo v. Hopkins, 923-25Plessy v. Ferguson, 926-313. Deferential ScrutinyWilliamson v. Lee Optical Co., 932-35February 124. Suspect Classifications: Race and EthnicityKorematsu v. United States, 1548-56, 112-13Brown v. Board of Education I, 936-41Bolling v. Sharpe, 941-43Brown v. Board of Education II, 943-47Loving v. Virginia, 948-527February 145. Affirmative ActionRegents of the University of California v. Bakke, 955-69Adarand Constructors, Inc. v. Pena, 970-83Grutter v. Bollinger, 984-1004B. The Problems of Equal Protection: Somewhat Suspicious Classificationsand Fundamental RightsFebruary 19 No class (Presidents Day)February 20 (Monday schedule of classes)1. IntroductionACI, 1005-192. Somewhat Suspicious Classifications: GenderFrontiero v. Richardson, 1022-27Craig v. Boren,