PLS 206

American Constitutional Foundations

STUDY GUIDE AND READINGS QUESTIONS

PART 1: Introduction

I. Constitutionalism

· What is constitutionalism? More importantly, why did the framers (e.g. Madison) think constitutionalism was necessary? More specifically, what does constitutionalism reveal about the human nature assumptions of the founders?

· Constitutionalism is in some ways anti-majoritarian. Do you think that makes it undemocratic?

· How does constitutionalism address the tension between governmental power and individual freedom through structural and substantive means?

· Why is it important to keep in mind that the Constitution “governs the government,” not the actions of private citizens?

II. The Founding and the Constitution

· How did the Declaration of Independence, the framing of the Constitution, and the battle for ratification of the Constitution reflect the principles and interests of leaders during that time?  For example, what kinds of compromises were made during the Constitutional Convention in an attempt to address both the principles and interests of the framers?

· What were the overall problems with the Articles of Confederation?

· Why did James Madison think faction and majority tyranny were connected (Federalist #10)?  How did he seek to address faction in the design of the new Constitution?

· Why did the Federalists and Anti-Federalists disagree?

PART 2: Separation of Powers

· Background question: Why did I make such a big issue of redefining “separation of powers” as “separated institutions sharing power”?

I. Judiciary

· We often say that the judiciary is a guardian of our individual liberties against government constraint, but of course the judiciary itself is part of the government. In what ways do you think this raises the stakes for the way judges approach constitutional law?

· What is the difference between jurisdiction and justiciability? How does the Supreme Court address the issue of jurisdiction in Ex Parte McCardle (1869)? What does that case tell us, if anything, about the relationship between Congress and the Supreme Court on the issue of jurisdiction? What rules of justiciability has the Court created to guide how it selects and disposes of cases (see especially the discussion in the text)?

· How does the selection process for federal judges address the competing values of judicial independence and accountability?

· What is the basic definition of judicial review? How did Hamilton justify it in Federalist 78, and how did Chief Justice John Marshall use Hamilton’s argument in Marbury v. Madison (1803)?

· Judicial review is an exercise of political power; it allows federal courts to exercise authority and determine “who gets what, when and how.” If this statement is true, there is a lot at stake in what the courts do when they interpret the Constitution. What are the basic approaches to understanding the Constitution, and how do they reflect different notions of what the Constitution fundamentally means?

II. Legislative

· How are these sources of congressional power – enumerated, implied, inherent, and amendment-enforcement – distinguished from each other?

· How does McCullough v. Maryland (1819) settle the question congressional power to create a national bank? What are the implications of that decision for future exercise of congressional power?

· Why does the president sometimes get the upper hand in the battles over control of international affairs, especially with respect to warmaking power? What does the relationship between the Congress and president over these matters tell us about the role of politics in shaping our understanding of the Constitution?

III. President and the Executive Branch

· Why have Americans developed such high expectations of the presidency, and how have those expectations shaped our understandings of the constitutional sources of presidential power?

· Compare US v. Curtiss-Wright and Schechter Poultry. What differentiates these two cases, which both deal with delegations of congressional power to the executive branch?

· What’s the issue in the Youngstown case? Do you agree with Jackson’s solution in his concurrence?

· Why do we make the distinction between official and unofficial conduct in determining presidential immunity from criminal prosecution or civil suit?

PART 3: Federalism

I. Background to Federalism

· How is federalism different from unitary governmental systems?

· Why was federalism included as part of the constitutional design?

· What are some of the constitutional bases of federalism? What cases and political events have shaped our understanding of federalism and solidified the national government’s general supremacy in national-state relations?

· How do cases like Hammer, Darby, and Prinz reflect historical patterns in federalism (e.g. dual, cooperative, “new” federalism)?

II. Federalism and the Commerce Clause

· Why did I say that the Commerce Clause serves a “dual purpose”?

· What are the elements of Marshall’s broad understanding of the Commerce Clause in Gibbons v. Ogden (1824)?

· How did distinctions between “manufacture” and “commerce” and between direct and indirect effects enable the Supreme Court to strike down many congressional efforts to regulate the economy between 1880 and 1937?

· How has the Court used the “substantial effects” doctrine since 1937?

PART 4: Civil Liberties

General questions:

· Why did Alexander Hamilton and James Madison initially oppose inclusion of the Bill of Rights into the Constitution? What substantive and political reasons ultimately led to the Bill of Rights?

· What were the implications of dual citizenship on the application of the Bill of Rights to state governments? How did the passage of the 14^th Amendment and the emergence of the Incorporation Doctrine change the status of the Bill of Rights?

· What the basic difference between a civil liberty and a civil right?

I. Religious Freedom and Religious (Dis)establishment

· Is there any principled or pragmatic way to define "religion" for constitutional purposes?

· The Free Exercise Clause is written in absolutist terms, but the Supreme Court has often validated government restrictions on religious practice? How has the Court used ideas such as the belief-action distinction (Reynolds), the compelling state interest test (Sherber, Yoder), and secular regulation (Smith) to justify its decisions?

· Do constitutionally valid limitations on religious practice tend to fall on certain kinds of religious practices and not others? What do such patterns tell us about the politics of constitutional deliberation?

· What was at stake in the Boerne v. Flores decision about the Religious Freedom Restoration Act?

· No one disputes that government may not establish a single state religion, but there the agreement seems to end. Should government support or otherwise accommodate religion in any way? Does it matter whether the support is “tangible” or “symbolic”?  Why or why not?

· What is the Lemon test? What are its assumptions about how government should interact with religion? In general, how has the test worked as a means of settling church-state disputes?

· What are some of the unique challenges of church-state law in the context of religion in schools?  Should religious beliefs be accommodated in public school curricula (e.g. creationism in Edwards? prayer in Lee?)  Should government funds and other resources go to private religious schools (note, e.g., the Zelman case)? How might the principle of equal access bear on these questions, if at all?

· What are the assumptions behind the accommodationist and separationist arguments?

II. Speech and Association

· Compare and contrast the concept of “freedom of religion” with “freedom of speech.” What the similarities and differences?

· Some key “thought” questions:

o Does “speech” include words that are spoken or written, or does it include other expressions that communicate ideas? If we broaden speech to include broader “expressions,” where do we draw the line? Don’t most actions we take “communicate” in some way? And who gets to decide?

o Even if we can identify forms of speech, are there some forms that are not constitutionally protected? For example, what if speech advocates illegal activity or damages someone’s reputation or is obscene? For the sake of what interests or values would government be constitutionally justified in limiting certain forms of speech? Is constitutional protection for speech all or nothing? Or should there be more protections for some forms of speech and not others?

o Do I have a right NOT to speak? Should government be able to compel me to associate with expressions of ideas that I dislike?

o What about government support of certain forms of speech (e.g. funding certain ideas and not others)?

· From a (classically) liberal perspective, restrictions on speech are profoundly problematic. What are the fundamental reasons liberals (e.g. J.S. Mill) are so dubious of free speech restrictions? How do “civic republicans” respond? Progressivists?

· What is the most basic distinction between the Two Tracks in the Supreme Court’s Free Speech analysis?

· We talked about applying strict scrutiny when we discussed religious freedom (recall that the “compelling state interest” test is an element of strict scrutiny in Religion Clause cases). What does it mean to apply strict scrutiny in the context of free speech law? And why does the Court apply definitional balancing in deciding whether governmental speech regulation will be strictly scrutinized?

· Under what conditions will the Court allow time/place/manner restrictions on speech? And what is the role of public forum doctrine in determining these restrictions?

· Questions about political dissent:

o When the Holmes laid out the clear and present danger test, he asserted that the Free Speech Clause is not a bar against all government restrictions of expression. How has the Supreme Court applied that test as well as the bad tendency, clear and probable, and Brandenburg test in developing this area of constitutional law?

o Why is it relevant that socialists, anarchists, communists, and small religious groups are often the focus on cases addressing political dissent?

o Why does the Court treat symbolic speech differently that uttered or written speech? How did the Court apply its doctrine of symbolic speech in such cases as O’Brien and Texas v. Johnson?

· Questions about hate speech:

o In principle, how does the Court treat fighting words (see, e.g., Chaplinsky)?

o Why did the Court rule against the city of St. Paul in RAV, despite the fact that the Court granted that St. Paul had the power to regulate the cross-burning as a form of fighting words?

· Questions about compelled association

o The Court generally holds that the freedom to speak entails the freedom NOT to speak. In light of that perspective, what form of legal scrutiny would the Court likely apply in instances of state-compelled expression or association?

o How does the idea of public accommodation play a role in the associational rights of private groups (see, e.g., Boy Scouts v. Dale)?

III. Rights of the Accused

· In general, why do you think the framers devoted such a large portion of the Bill of Rights to the rights of the accused? What does this attention to the rights of the accused suggest about their views of government? What does it suggest about their views of governmental legitimacy?

· Questions about search and seizure (4^th Amendment):

o I suggested in class that the framers were concerned about the British practice of issuing writs of assistance and engaging in general searches. How does the 4^th Amendment attempt to prevent those searches?

o After Katz, the Court drops its trespass theory of search and seizure (from Olmstead) and adopts what I called a doctrine of reasonable expectation of privacy. Why is the Katz doctrine an expansion of search and seizure protection under the 4^th Amendment (i.e., what will the post-Katz Court require government to show if there has been a warrant-less search)? And why is context so important in determining the “reasonableness” of expectations?

o What is the exclusionary rule, and why did the Court develop it (remember that this is not a principle explicitly stated in the Constitution)?

· Questions about juries (6^th and 7^th Amendments)

o According to the Constitution, we have a fundamental right to trial by jury in both criminal and (many) civil cases. Why, then, are jury trials used so rarely in our legal system? Put another way, what explains the increasing professionalization of trials in the United States?

o What do you think the framers would have thought of the concept of jury nullification? Think broadly here. Why did the colonial experience with Britain factor into the decision to emphasize jury trials? Would nullification fit with a belief in juries as a democratic check on government? Why do many commentators express so much concern about nullification (i.e., how does nullification raise fundamental questions about the rule of law)?

· Questions about cruel and unusual punishment (8^th Amendment)

o What is the difference between values of proportionality (associated with retribution) and deterrence (associated with consequentialism)? How did the Court address these values in Gregg v. Georgia (1976)?

o The Court has identified several potential problems with capital punishment under the Cruel and Unusual Clause of the 8^th Amendment. What are those problems, as discussed in Furman v. Georgia (1972), McClesky v. Kemp (1987), and Coker v. Georgia (1977)?

IV. Substantive Due Process and Right to Privacy

· What is the difference between the Due Process Clause in the 5^th and 14^th Amendments? Does it matter?

· What is the difference between procedural and substantive due process? What does the notion of fundamental rights have to do with the substantive form?

· How do intellectual trends such as laisses faire economics, social Darwinism, and natural rights theory help explain the Court’s use of economic substantive due process in the late 1800s and early 1900s?

· What was Holmes’ argument in his Lochner v. New York (1905) dissent? How does his basic argument get used in West Coast Hotel v. Parrish (1937), and what is the implication of that case for economic due process?

· How did Brandeis’ argument for the “right to be let alone” and Stone’s famous Footnote 4 lend credence to the emergence of a right to privacy? How did Stone distinguish the proper use of the rational basis test from strict scrutiny in the context of economic and non-economic relations?

· Contrast Douglas’ (“penumbras and emanations” from the Bill of Rights), Goldberg’s (ordered liberty), and Black’s (“day-to-day constitutional convention”) arguments in Griswold v. Connecticut (1968)? How do their arguments reflect different ways of understanding how to read the Constitution?

· What’s the difference, if any, between Lochner and Griswold?

· On what basis does the Court design the trimester framework in Roe v. Wade (1973)?

· Why did I suggest that there is an underlying concept of autonomy in Roe that marks an expansion of (even a departure from) the Griswold decision? How might this concept of autonomy help us distinguish between cases like Cruzan v. Cruzan (1990) and Washington v. Glucksberg (1997)?

· Contrast Bowers v. Hardwick (1986) and Lawrence v. Texas (2003). What explains the change from one to the other?

PART 5: CIVIL RIGHTS AND EQUAL PROTECTION

I. Introduction

· The Equal Protection Clause is a restraint on government’s using classifications in deciding who gets what. Still, nearly every law “discriminates” in the sense that some citizens are treated differently than others. In general, how has the Court determined when the use of classifications is constitutionally warranted and when it is not?

· What is the difference between a civil liberty and a civil right? What is the role of government with respect to each?

II. Discrimination and Affirmative Action

· Questions about types of review:

o When and how is strict scrutiny applied in Equal Protection law? What does it mean to say that a person belongs in a suspect classification? What is the basic distinction between an alleged E.P. infraction as applied versus on its face? And how does race factor into this level of scrutiny (consider Korematsu, for example)?

o I suggested that there is something like a “middle-level” review in E.P. law. How is it different than strict scrutiny? To whom does it typically apply (note the VMI and Craig v. Boren cases here)?

o What is the rational basis test, and how has it been applied in such cases as Romer v. Evans and Lawrence v. Texas?

· Example: Race and Affirmative Action

o As background, we discussed Plessy v. Ferguson and Brown v. Board of Education. On what basis did the Brown Court overturn its ruling in Plessy? In particular, why did the Court argue that separate but equal is inherently unequal?

o What is affirmative action? Why does it raise Equal Protection questions (and which level of scrutiny does it usually require)? Why do some critics suggest that it is essentially a form of reverse discrimination?

o Why was Bakke a mixed decision for affirmative action programs? In particular, what did the Court say about the interests of the state in enacting affirmative action programs? And how did the Court’s view of such interests play a role in Grutter and Gratz cases out of the University of Michigan?

III. Voting

· South Carolina v. Katzenbach (1966) raised some serious questions about Congress’ power to address impediments to voting in certain states. What was at issue in that case?

· In apportionment cases, the Court has argued for the principle of one person, one vote. On what basis has it done so (see especially Reynolds v. Sims)?

· How does the Court’s decision in Miller v. Johnson (on minority-majority districts) relate to affirmative action case law?

· Why did the Court rely on the Equal Protection Clause in Bush v. Gore?

PART 7: CONCLUSIONS

I. Does the Court Matter?

· Why did Alexander Hamilton predict that the judiciary would be the least dangerous branch? How did his perspective on the judiciary differ from popular perceptions of the judiciary today? Why did I suggest that popular perceptions are often shaped by the myth of rights?

· Compare the two paths of causal influence we discussed in class: judicial and extra-judicial. How are they distinguished?

· What are the assumptions of the dynamic and constrained Court hypotheses? What do our case studies of abortion and civil rights reveal about these assumptions?

· How might the Court’s constraints be overcome?