Politics 133a
Fall 2002
Constitutional law I—Structure and authority
Intellectual Focus
The Constitution is a central element of American civic life, It creates common values and aspirations for an ethnically and religiously diverse populace disbursed over vast geographically spaces. Constitutional Law I is a politics course about the Constitution, the courts and the judges. Constitutional law is a form of high politics. Politics is defined as a means by which a society structures collective choices about the distribution of scarce resources. Politics operates by selecting values, by establishing procedures and by creating institutions, for making these choices.
Americans have always believed that law can be a powerful
engine for social change. Alexis de Tocqueville observed in the 1830s that,
“Scarcely any political question arises in the United States that is not
resolved, sooner or later, into a judicial question.” This faith seemed
to be vindicated by the Supreme Court’s 1954 decision, Brown vs. Board
of Education, invalidating racial
segregation.
The Setting
Horror, anger and confusion followed airliners being turned into flying Molotov Cocktails and flown into the World Trade Center and the Pentagon. These events were experienced by most Americans, and indeed most of the world, in almost real time through television. Televised images shocked Americans back into a global world. The public’s inattention appeared to be a naïve and dangerous luxury. After scurrying from military base to military base— an image that conveyed weakness— the president returned to Washington and reasserted the authority of the “imperial presidency.”
The events of September 11 appear to be a turning point in American history. In its aftermath government, especially the executive branch under President Bush, acted decisively declaring a war on terrorists and nations supporting terrorism. For some, the government acted with greater haste than care. The Attorney General directed widespread interception of electronic communications affecting the privacy expectations of most Americans.
By executive order, President Bush authorized military tribunals. “Military tribunals, secret evidence, no numbers on how many people the government is detaining, says Jim Zogby, President of Arab-American Institute. “We’re looking like a third world country.” In October 2001 Congress enacted, with little debate and even less Congressional opposition, the USA-Patriot Act adopting sweeping changes to the legal rights of Americans and legal residents suspected of “aiding the cause of terrorism.”
In prosecuting the worldwide war against terrorism, the Bush Administration has pursued a concerted and heavy-handed campaign to control the information flow to Congress, to the media and to the American people. To critics on the left and right accusing the Bush administration of ignoring civil liberties Attorney General John Ashcroft replies, “I think it’s important to understand we are at war now.” President Bush has asserted unprecedented authority under his power as “Commander-in-Chief” directing Secretary of Defense Rumsfeld to imprison an American citizen in a naval brig without charges and without any formal judicial or administrative process. The government asserts the right to hold this suspected terrorist for an indeterminate period.
The collision between national security interests and civil liberties in times of crises is hardly unprecedented in American history and Chief Justice Rehnquist reminds us of this in All The Laws But One. Once again, constitutional law will be the vehicle through which Americans—elites and masses— confront our fundamental values in adapting our Constitutional tradition to new and unanticipated challenges.
The Court’s Residuum of Legitimacy
Some, like Professor John Semonche of the University of North Carolina, identify the Constitution as the sacral document of our “civic religion” binding us together as a people. For over two hundred years, the United States Supreme Court remained a major player in our National life as the most influential expositor of the Constitutional canon. Over time the Court is revered and at other times it is excoriated. At all times the reputation of the Court and the justices are crucial to its effectiveness and authority. As Alexis de Tocqeville observed over 150-years-ago: “if ever the Supreme Court comes to be composed of rash or corrupt men, the confederation would be threatened by anarchy or civil war.” This semester we explore the interaction among the Constitution, the Court and the American people in the context of a number of the most important and most divisive cases to reach the Court.
Despite the general high regard with which American’s hold the courts, the judges and justices have never been immune from criticism and occasionally vilification.
Thomas Jefferson castigated the Marshall Court as a “corps of sappers and miners,” and in a major campaign speech to the American Society of Newspaper Editors, 1996 Republican Presidential candidate Robert Dole charged:
I find it shameful that law-abiding Americans are often locked behind bars–the security bars on the windows of their homes– while criminals are left free to roam the streets… Many of the judges Mr. Clinton has appointed to the federal bench are precisely the ones who are dismantling those guardrails that protect society from the predatory, the violent, and the anti-social elements in our midst.
Indeed, today, forty-two years after Brown, we are experiencing a crisis of confidence in the efficacy of law as an instrument of social transformation. An extremely influential 1991 work – The Hallow Hope: Can Courts Bring About Social Change? – concludes U.S. courts “can almost never be effective producers of significant social reform.” More recently, Mark Tushnet wrote Taking The Constitution Away From The Courts suggesting that the extent of judicial influence in American life is problematic. Robert Dahl, perhaps the most preeminent democratic theorist of our time recently presented his critical reflections on “pluralistic politics” under the Constitution in How Democratic is the Constitution?
When the Supreme Court granted certiorari and agreed to hear the Florida presidential election dispute in December 2000, lawyers, scholars and “talking heads” were stunned. No one expected the Supreme Court to inject itself into this heated political controversy. The oral arguments on December 1 focused media attention and the Nation on the Court and the justices. Spin and speculation were rife throughout the weekend. The American public participated in this hearing earlier and more directly than ever before when the proceedings were rebroadcast over radio, television and the Internet in near real time.
On Monday, December 4, 2000, the Court reversed and remanded the decision of the Florida Supreme Court. Almost everyone was surprised at this outcome. But it was the Court’s decision on December 12 in Bush v. Gore effectively ending the 2000 Presidential Election that will remain the “blockbuster” judgment for many years to come. The sharply divided decision mirrored the Nation’s division in public opinion. Supporters praised the decision as just and fair. On the other hand, critics compared the decision with Dred Scott and termed it political and partisan. The decision and the justices were microscopically dissected in the news media in the ensuing weeks. A review of two important books on the case observed:
Whenever judges hand down far-reaching decisions, supporters applaud their courage while dissenters warn of the dangers of raw judicial power . . . . Bush v. Gore simply unmasked the context [the distressingly subjective nature of the law] in an unsettling partisan fashion.
Notwithstanding the intense partisan division in the country engendered by Bush v. Gore, the legitimacy of the Court’s ruling was never seriously questioned. In dissent, Justice Stevens suggested that Court and the judiciary would pay the price for this foray into the political thicket. Justice Stevens appears to have been dead wrong.
Indeed, Chief Justice Rehnquist uncharacteristically referred to the election controversy in his 2000 Year-End Report on the Federal Judiciary as “the seesaw aftermath of the Presidential election.” Notwithstanding the Court’s high profile position in the policy process during this monumental struggle, the Justices preserved their “Wizard of Oz-like” aura of mystery by declining to allow the proceedings to be televised or photographed.
The Class— Objectives and Approach
My goal as leader this course is to[1]:
· assist you in learning about the central tenets of American constitutional principles.
· enhance your curiosity about an intellectual subject.
· promote a disciplined approach to an intellectual subject.
· help you appreciate the contingency of constitutional issues and the controversy surrounding interpretive approaches.
· instill in you a working knowledge of the Supreme Court and American constitutional history.
The class aims at fostering skills of critical analysis and clear and effective expression in writing and speaking. You learn how to use appropriate research techniques taking full advantage of available library and electronic resources. To accomplish these objectives you write a number of papers. Some of your written assignments may be revisions and reconsideration of earlier work.
Your responsibilities as a participant in the class:
· to recognize that success in this class is only partly my responsibility.
· to take the educational opportunity provided by this class seriously.
· to keep an open mind.
· to be respectful of the other participants in the class.
· to allocate for yourself the time necessary to prepare for each class meeting.
This course requires close and careful reading of text. We will analyze cases, doctrines and criticisms through class discussion, student presentations and through a number of written assignments. Class uses discussion, lecture and student presentations in exposing you to constitutional law. Politics 133a is speaking intensive, accordingly each of you are required to make an oral presentation to the class. Because oral presentations are time consuming, I must divide the class and have presentations during times when most of you can be available. Remember, to succeed in this class you must be an active and engaged participant.
Bush v. Core and the public’s attention focused on the Supreme Court confirming the Court’s position as one of the most powerful legal institutions in the world. Seemingly, Americans of all political persuasions were ready to accept judicial pronouncements on the Florida Election Controversy as legitimate and fair.
The distinguished political writer and the current Mexican Foreign Affairs Secretary, Jorge Castaneda, speaking at Pomona College, wryly observed:
Americans
have boundless faith in the rule of law. They have a naïve optimism that
passing a law will make a difference. In fact, Americans live under a poorly
functioning and partially corrupt legal system.
By
way of contrast Mexicans have no illusions about the efficacy of law. In
Mexico, there is no rule of law at all. It is the difference between living
under a “lousy” legal system and living under none at all.
Constitutional interpretation is a responsibility shared by all of the institutions of American government. However, because the courts, and particularly the United States Supreme Court, have become the leading expositors of the meaning of the Constitution, much of our attention will focus on judicial cases and the work of the Supreme Court.
Constitutional Law— the Grist of American Politics
Constitutional law is, in large measure, though not exclusively, an artifact of the judicial process. When the courts construe the Constitution, there are significant consequences for individuals and groups. Often times, it is constitutional litigation, as Chief Justice Fred Vinson noted, “upon which are based the plans, hopes and aspirations of a great many people throughout the country.” “The Court’s decisions, after all, are exercises of enormous coercive power that reorder many, even millions, of individual lives, indeed of society itself,” according to a former clerk for Justice Blackman.
Writing in the New York Times, Professor David O’Brien, author of our principal text, observed that:
Throughout
U.S. history, the courts have played a major role in the nation’s
governance, often changing the course of public policy. At times the Supreme
Court has taken on major controversies that neither the Congress nor the
president was willing to address…
More
recently, the Rehnquist Court brought about the end of most affirmative-action
programs. In 1989, it ruled states and localities could adopt such programs
only if they are narrowly tailored remedies for past discrimination against
women and minorities. In 1995, the Court extended this to strike down most
affirmative-action programs put into place by the federal government. Neither
Congress nor the president would have agreed to end these programs.
Inevitably, the Court’s judgments distribute scarce resources among political winners and losers.
Occasionally, the Court’s decisions themselves become sources of political controversy. The most striking example is Scott vs. Sanford (1857) where the Court decided Negroes were not citizens of the United States and that Congress could not restrict slavery. The decision denied Dred Scott and his family their freedom. It also hastened the civil war.
In 1991, the justices decided that a physician in a federally funded family planning clinic could not discuss abortion with his or her patients [Rust vs. Sullivan]. Moreover, the decision also greatly expanded the government’s authority over individuals through the power of the government to tax and spend. “The gag rule” provoked an outpouring of public protest and both houses of Congress passed legislation reversing the Court. President Bush vetoed the legislation. The Rust decision became a factor in the 1992 Presidential Election used by the Democrats to mobilize women voters.
After taking office, President Clinton revoked the gag rule by executive order. With the inauguration of President George W. Bush, a professed “pro-life” advocate, the gag rule was reinstituted as an administrative regulation.
What the courts decide–especially the Supreme Court–becomes public policy. These decisions, in turn, give rise to further political controversy.
The Fundamental and Inescapable Questions in Every Case
Walter Murphy, Emeritus McCormick Professor of Jurisprudence at Princeton University and one of the foremost Constitutional scholars, maintains that the study of Constitutional law revolves around three fundamental questions:
Þ What
is the Constitution?
Þ How
do we determine what the Constitution means?
Þ Who determines what the constitution means
Professor Murphy’s questions raise one of the most difficult and complex issues in American constitutional law: how can we reconcile judicial review with our democratic ideals. This challenge is often termed the “countermajoritarian difficulty.” Two of your supplemental readings— Tushnet’s Taking The Constitution Away From The Courts and Peretti’s In Defense of A Political Court offer different answers to the “countermajoritarian difficulty. The theories and arguments introduced in these readings will be the basis for questions on the final examination.
Briefing
You may find it helpful to brief each case you are assigned. A brief is a conventional way of digesting a judicial opinion into standard elements. You will find exemplar briefs on the class web page or you can consult one of the standard Con. Law texts that are on the shelf in Carnegie 11. See Epstein & Walker, 626-627, or Murphy, et al. 19-20.
Class Meetings and Oral Presentations
The Class will normally meet on Monday, Wednesday and Friday in Carnegie 109 at 10 AM. Class attendance is not mandatory in the sense that I will take role, but the discussion will affect your grade; and if you are absent, you cannot contribute (nor respond if your name is called). However, when oral presentations are scheduled, one half the class will meet at 8 A.M. and the other half will meet at 1:15 P.M. rather than at 10 A.M. on Friday. However, on December 6 there will be a class meeting at 11 AM these sessions are mandatory and I will take attendance. The oral presentation fulfils the “speaking intensive” requirement of this class. This is your opportunity to research, conceptualize and present information about a significant issue on the Court’s current policy agenda. The goal is to help you articulate complex ideas and to provide the class with useful in-depth information to supplement the readings.
Emphasis in class is on discussion of the materials you have read, although there will be some lectures. Accordingly, you cannot passively come to class, take notes and do the reading before the examination‹ this is not a constitutional law appreciation class. You must stay current with the assigned work. You should brief and analyze the assigned cases before you come to class [see Epstein & Walker, 626-627, or Murphy, et al.
On-line Support
You can access Supreme Court decisions at <http://www.law.cornell.edu/supct/supct.table.html>.
Texts:
O’Brien, David, Volume One: Constitutional Law and Politics: Struggles for Power and Governmental Accountability, (5th.) New York: Norton, 2002.
I have chosen this text written by one of America’s most respected constitutional scholars. He is considered an expert on the inner workings of the contemporary Court and a leading commentator on the Court’s work. O’Brien was a Judicial Fellow in the early 1990’s where he developed a number of important “inside sources.”
The text is “dense” in that it offers very detailed
discussion and questions about cases and doctrines. Its range of coverage and
its effective presentation of the principal themes of separation of powers,
federalism and institutional authority are excellent.
Peretti, Terri J., In Defense of A Political Court, Princeton, N.J. Princeton University Press, 2001.
Explores
competing theories of judicial power and the legitimacy of judicial review in a
democratic political order. Although a difficult read, Professor Peretti
presents the clearest exposition of contemporary interpretive jurisprudence and
how these ideas are key to the dispute among scholars and lawyers about
today’s Supreme Court and its work.
Rehnquist, William,
All The Laws But One, NY: Vintage, 1996.
A historical analysis by the Chief Justice’s exploring the conflict between providing national security and preserving limited government and personal freedom in American history. This is an engaging and easily assessable work on a topic of vital current interest.
Tushnet, Mark,
Taking The Constitution Away From The Courts
A leading contemporary “judicial review skeptic” challenges the conventional deference to the role that the Supreme Court has claimed for itself. Professor Tushnet takes strong exception to those like Professor John Somonche who views the Court as temple of our civil religion.
Your Grade
Class participation: 100
pts*
1st Analytical Essay 30
pts (September 9)
2nd Analytic essay 50
pts (September 13)
1 Midterm examinations: 150
pts (October 11)
Oral
presentation 100 pts (September 20, September 27, October 25, November
15 & December 6)
Final examination 300
pts (December 17, 8AM)