Please choose one of the following topics for your final essay. The essay should be no more than 5,000 words inclusive of footnotes and is due on November 18. Please feel free to use any standard citation style (Bluebook, Chicago, OSCOLA, etc.) with which you are familiar.
1. “Underlying [Justice Breyer’s] dissent is the optimistic idea underlying most of his dissents: What sets the majority and the dissenters apart is not a disagreement about basic principles—it is that the justices in the majority are not looking as carefully as they should at the most important facts. If they did, they would see the case as he does. They would join his opinion.” Does this conception of dissenting opinions accurately describe your understanding of the materials we have covered during this course and the reasons why judges at the US Supreme Court issue dissents? If you were a judge on the US Supreme Court, what would be your judicial philosophy on dissenting opinions?
2. Consider the following interview exchange with Justice Kagan:
“SM: I hear you and I think one of the things that really brings up is the important issue of diversity—diversity on the Court. As you know, the Court as a whole does not reflect the demographics of American society. If we look at the Justices themselves, many are appellate lawyers, come from a very small number of law schools, only three women on the bench—and I do say “only.” And not a lot of diversity when we look at race and religion and ethnicity and geography. So I’m wondering what role do you think—if any—peoples’ experiences and back-grounds shape how the Court makes its decisions, and is there an example where you think it really mattered?
JK: In general, I would say I’m a big believer in diversity in the judiciary, but for a different reason than that, which I’ll come back to. In general, I don’t think diversity necessarily means that you’ll get a different set of views on the Court. I mean, if you think about women: there are lots of women in the world and they have all kinds of different views. My colleague Justice Ginsburg was once asked, How many women should there be on the court? And she said, Nine? How about that? Whether it’s five or whether it’s nine, you could have nine women who all had views like me. Or you could have nine women, none of whom have views like me. Or you could have some mix, because women disagree on a lot of different things. All you have to do is look around the U.S. judiciary and you’ll find women on every side of most legal questions.
So, I don’t really think—and what I think about in conference—I’ve been on the Court now, this is my tenth year. I can’t think of all that many cases where I thought to myself, This would come out differently if only there were more women here. The time when I most thought that, where I most sort of thought, My gosh. This is, you know, there really is a different perspective here, I have to go back to ten years ago. I was Solicitor General at the time. At that time, the Court had only one woman on it. It was the year before Justice Sotomayor arrived, so it was only Justice Ginsburg. There was a case about a thirteen-year-old girl in a junior high school who was strip-searched because she was thought to have marijuana or some other kind of drug on her. She was strip-searched by male school administrators. I would say that it was not the greatest day on the bench for the Supreme Court, because you could see Justice Ginsburg—in the questions that she asked—that she had a picture in her head of what this was like and what it would feel like if you were that thirteen-year old girl. But she was really the only one. Some of the men on the Court were not having their finest hour: they were sort of joking and not appreciating what this would have seemed like to a thirteen-year-old girl. There was a lot of commentary on it at the time—all deserved, I think. Then they went back into the conference room, and I don’t know what happened there, but they came out and Justice Ginsburg’s view—which was that it was an unconstitutional search—that view prevailed by an ex-tremely lopsided vote. So, in the end she was able to convince people that this was a serious matter even if they were kind of haha-ing on the bench.
But I think that, as I said before, you can find people of all kinds of different views who are women or African American, who are Hispanic. I think the more important reason to have diversity on the court is because I think that if the Court doesn’t have legitimacy with the American public, the Court can’t do all that much, and the Court won’t be taken seriously. To have legitimacy with the American public, I think one part of that—it’s not the only part by any means—but one part of that is that all kinds of different people should be able to look at the Court and say, I see somebody there who looks like me, who thinks the way I do, who has experiences of the kind that I had. That’s the kind of thing that gives the Court public legitimacy.
Based on the materials we have discussed during this course, what is your view on 1) whether judicial identity in terms of diversity matters and, if so, what kind of diversity matters; and 2) whether it should should be a factor in judicial nominations.
INTRODUCTION TO U.S. CONSTITUTIONAL LAW
Fall 2024
SYLLABUS
This course will expose students to the structure and basic ideas of some of the most important areas of U.S. constitutional law. To this end, it will place emphasis on key constitutional concepts and doctrines, including judicial review, constitutional interpretation, vertical and horizontal distribution of powers, the commerce power, and the rights to equal protection, privacy, and freedom of speech.
In addition to the black letter rules and doctrines that are central to the U.S. constitutional law, the course will focus on the values animating the U.S. constitutional system and the process through which constitutional law gets interpreted and enforced.
As the course provides an overview of common law approach to reasoning and the constitutional structure of the U.S. government, it is designed to equip students with the foundational concepts and methods they will need to navigate more advanced courses on these topics.
1. Required Materials
This course does not have an assigned textbook. Instead all readings for the course including the syllabus, case materials, videos, and additional readings, will be posted on the course Canvas site.
2. Schedule
Our first six classes will be held in-person in Madrid from September 9 to September 11. The rest of the course will take place online through a combination of asynchronous video sessions and synchronous online sessions on November 2, 9, and 16.
3. Contact Information
You can reach me by email at neha.jain1@law.northwestern.edu. I am also happy to set up meetings over Zoom for any questions you may have on the course materials.
4. Class Attendance and Participation
Class attendance and participation are vital to success in this class. I will call on students, both in person and online, during the course of the semester and expect students to have read the assigned material. Exceptional class performance will merit consideration for a grade increase. If you are not prepared to participate, you should mail me in advance to be placed on a do-not-call list up to two times during the semester.
5. Grading Policy
1. Response papers (25 percent): To facilitate on-going interaction with the course materials and ensure wide participation, students should prepare a response paper reflecting on the materials for remote class sessions, namely, the three sessions on 02/11, 09/11, and 16/11. The papers should be no more than 500 words. They are not expected to summarize every aspect of the reading, but should make a critical point, suitable for class discussion, based on the reading. Papers are due 24 hours before each class session and should be uploaded on Canvas.
2. Final essay (75 percent): Students will be asked to write an essay on any one of two topics that will be circulated after the in-person class sessions in Madrid. The essay should be no more than 5,000 words and will be due on November 18.
6. Syllabus
This syllabus may change to allow for pace adjustments and developments that are relevant to U.S. constitutional law. I will provide notice of any deviations from this syllabus.
Class 1, 09/09 The Common Law Method of Reasoning
Burnham & Reed, pp. 59-64, 75-80, 99-100 Download Burnham & Reed, pp. 59-64, 75-80, 99-100
Schauer, 36-60, 85-102
Winterbottom v. Wright (all cases linked on Canvas)
McPherson v. Buick
Class 2, 09/09 The U.S. Federal Structure and System of Courts
Burnham & Reed, pp. 1-14 Download Burnham & Reed, pp. 1-14
Tarr, pp. 23-48 Download Tarr, pp. 23-48
Dudley, pp. 33-48 Download Dudley, pp. 33-48
West, It’s Time to Abolish the Electoral College Links to an external site.
Yglesias, American Democracy’s Senate Problem, Explained Links to an external site.
Class 3, 10/09 Constitutional Supremacy and Judicial Review
Burnham & Reed, pp. 14-18, 553-556 Download Burnham & Reed, pp. 14-18, 553-556
Whittington, pp. 387-408 Download Whittington, pp. 387-408
Marbury v. Madison
Cooper v. Aaron
Lochner v. New York
West Coast Hotel v. Parrish
Class 4, 10/09 Constitutional Interpretation
Burnham & Reed, pp. 556-560 Download Burnham & Reed, pp. 556-560
Greene, pp. 887-908 Download Greene, pp. 887-908
Baude, 2023 Scalia Lecture, Beyond Textualism Download Baude, 2023 Scalia Lecture, Beyond Textualism
District of Columbia v. Heller
Zuni Public School Dist. v. Dept. of Education
Class 5, 11/09 Foreign and International Law in Constitutional Interpretation
Resnik, pp. 437-471 Download Resnik, pp. 437-471
Trop v. Dulles
Printz v. United States
Atkins v. Virginia
Roper v. Simmons
Lawrence v. Texas
Class 6, 11/09 Separation of Powers and the Administrative State
Burnham & Reed, pp. 318-322, 324-336, 347–355 Download Burnham & Reed, pp. 318-322, 324-336, 347–355
Mistretta v. United States
Chevron v. Natural Resources Defense Council
Collins v. Yellen
West Virginia v. EPA
Class 7, 02/11 The Commerce Power of the Federal Government
Burnham & Reed 575-83, 586-92 Download Burnham & Reed 575-83, 586-92
Online videos (Congress’ Powers and Commerce Clause; see “Panopto” on left)
Wickard v. Filburn
United States v. Lopez
NFIB v. Sebelius
Pike v. Bruce Church
Geier v. American Honda
Class 8, 09/11 Individual Rights (Equal Protection and Substantive Due Process)
Burnham & Reed 592-621 Download Burnham & Reed 592-621
Online videos (Individual Rights, Equal Protection, and Privacy in the Panopto section)
U.S. Constitution, 5th, and 14th amends.
United States v. Carolene Products
Brown v. Board of Educ.
Roe v. Wade
Dobbs v. Jackson Women’s Health Organization
Class 9, 16/11 Individual Rights (Freedom of Expression)
Burnham & Reed 621-61 Download Burnham & Reed 621-61
Online video (Free Speech in the Panopto section)
U.S. Constitution, 1st amend.
Chaplinsky v. New Hampshire
New York Times v. Sullivan
Florida Bar v. Went for It
NetChoice v. Paxton