PACE
UNIVERSITY
DEPARTMENT OF POLITICAL SCIENCE
POL
301J
Dr. Christopher Malone
Fall 2003
Office: 1101, 41 Park Row
cmalone@pace.edu
Phone: 212-346-1146
Office hours: Monday 11am-12:15pm Wednesday, 11am-1:15pm
Website: http://webpage.pace.edu/cmalone
Constitutional Law and Social Change
Society's overriding concern today should continue to be, indeed
must continue to be, providing freedom and equality, in a
realistic and not merely formal sense, to all the people of this
Nation. We know that social realities do not yet fully
correspond to the promise of the Fourteenth Amendment. We do not
yet have justice, equal and practical, for the poor, for the
members of minority groups, for the criminally accused, for the
displaced persons of the technological evolution, for the
alienated youth, for the urban masses, for the unrepresented
consumer–for all, in short, who do not partake of the abundance
of American life. . . . And the struggle is once again putting
at stake the substance of the Fourteenth Amendment."
–Justice William J. Brennan Jr., 1986
How
does law change and evolve? Why do some societies experience
gradual social growth, while others violent political
revolution? What are the conditions by which groups displaced by
legal norms can use legal processes to redefine their legal
status? How do legal institutions work under the stress of
social pressure? How do abstract normative concepts such as
justice, liberty and equality redefine, and are redefined by,
the goals of groups and the standards of legal obligation which
are afforded to those groups?
The Constitution is the bedrock of the American legal system.
The words of the document have changed little over its 216-year
history. But the meaning of the Constitution has changed
considerably over time, simply because that document serves as a
rudder for an American ship of State that navigates through the
unchartered waters of social change. Though fixed in what it
says, the Constitution has been interpreted by different
generations of Supreme Court justices who have had no choice but
to respond to existing social conditions of which they are a
part - whether they like it or not.
In
other words, The Supreme Court must invariably wade into the
rough and changing tides of politics. And it wades into politics
reluctantly, kicking and screaming. The interplay between the
Court’s decisions and the social forces they seek to address
lies at the heart of this workshop.
We will
examine all of the questions above by looking closely at how
decisions of the US Supreme Court have shaped - and have been
shaped by – the social forces at work in the history of the
United States. In particular, we will pay attention to three
areas of the law where change has been most dynamic, most
controversial, and perhaps, most needed: race, gender, and
sexual orientation.
Course
Requirements and Grading
This
class presumes that students have taken introductory courses in
either American system of government or have some basic
understanding of Constitutional Law. Furthermore, it is designed
to prepare students for a possible law school career (though
this should not discourage any student not going to law school
from taking the class). Most importantly, however, the class
requires dutiful attendance, careful preparation and reading,
and a willingness to participate in our discussions.
There
are four elements to the grade you will receive in this course:
1) class participation/case briefs; 2) moot court brief/opinion;
3) term paper; and 4) final exam.
Class
Participation/Case Briefs
Since
the course will use the case system in examining actual court
decisions, it is vital that you be prepared to participate at
each class meeting. While this is a constitutional law class,
keep in mind we are primarily concerned with understanding
politics and how the law affects political outcomes; as such, we
need to understand that constitutional law is more than just a
collection of legal rules within an institution of government.
In short, it is a blend of laws, history, and political culture.
Of course, what the Constitution says is important. But we also
need to understand that the Supreme Court decides what the
Constitution means; thus, how they have arrived at the decision
is crucial. In other words, in this course we shall emphasize
the importance of interpreting the Constitution within a given
historical context. And this is best accomplished by briefing
individual cases.
Students will be given an outline on how to brief a case. Cases
should be briefed before class, and students should be prepared
to present the facts of the case during class. In presenting the
case, the student will summarize the facts and findings of the
Court and will provide a reasonable analysis of the logic
employed in reaching a majority opinion. A summary of any
concurring or dissenting opinions is also important. If a
student is called upon to present a case and cannot do so,
points will be deducted from the class participation part of
that student’s grade.
Moot
Court Brief/Opinion
Students will also be required to participate in one of several
moot court trials conducted over the course of the semester.
“Moot Court” is simply a mock trial, where students write briefs
for a hypothetical case and argue the facts of the case before
the “court.” Students will either write a brief and argue the
case before the class, or act as a Supreme Moot Court Justice
and write an opinion deciding the case. Details on how moot
court is conducted will follow early in the semester.
Term
Paper
Students will be required to turn in a 10-12 page, typed,
double-spaced term paper due on the last day of class, December
8th. No late papers will be accepted. Topics for the paper are
negotiable, but all topics must be cleared by me beforehand. I
strongly urge you to set up an appointment to discuss paper
topics as soon as possible, but all students must see me
regarding their paper by Monday, October 21st.
Final
Examination
There
will be one in-class final examination in this course. The final
will consist of essay questions and will require demonstration
of knowledge acquired over the entire semester. Questions will
be distributed before exam week, so you will have ample
opportunity to turn in sample outlines of the questions
beforehand. I encourage you to do so.
Grading
and Grading Scale
Final
grades in the course will be determined as follows:
Class
Participation/Case Briefs: 150 points
Moot
Court Trial: 150 points
Term Paper: 150 points
Final Exam: 150 points
Total
possible points: 600 points
Grading
Scale
A:
600-540
B: 539-480
C: 479-420
D: 419-360
F: 359-0
Required and Recommended Readings
One
book has been ordered and can be found in the Pace University
Bookstore. In addition, you will have a packet of readings which
can be found on e-reserve in the library. I will alert you
beforehand when e-reserve readings will be available:
•
Gerald Rosenberg, The Hollow Hope: Can The Courts Bring About
Social Change? Chicago University Press, 1993.
Class
Schedule
The
following is a breakdown of the class schedule. No dates have
been determined because we will proceed as quickly or as slowly
as I think necessary. I will inform you what we will be doing
class by class and week by week. Please note that you are
responsible for keeping up with the material if you miss class
for whatever reason.
I.
Introduction : The Constitution and the Supreme Court in
American Politics
A. A
Brief Introduction to the American Legal System
B. The Constitution and the Supreme Court (e-reserve)
C. Understanding Supreme Court Decisions
D. How to Brief a Case (handout)
Readings:
Rosenberg, The Hollow Hope, pp. 1-38.
II.
Race, Civil Rights, and the Law
A. A
ColorBlind Ideal? Reflections on Race, Racism, and American
Politics in the First Century Readings:
Christopher Malone, “African Americans and American Politics:
An Overview” (e-reserve)
Cases:
Dred Scott v. Sanford (1857)
Slaughterhouse Cases (1873)
Civil Rights Cases of 1883
Plessy v. Ferguson (1896)
B.
Civil Rights in the Wake of Plessy I: Education (25 September-7
October)
Readings:
Rosenberg, The Hollow Hope, pp.39-172
Cases:
Missouri in ex. rel Gaines v. Canada (1938)
Mclaurin v. Oklahoma (1950)
Sweatt v. Painter (1950)
Brown v. Board of Education (1954)
Brown II (1955)
Swann v. Charlotte-Mecklenberg (1971)
Millikan v. Bradley (1974)
Freeman v. Pitts (1992)
United States v. Fordice (1992)
Missouri v. Jenkins II (1995)
FIRST
MOOT COURT TRIAL
C.
Civil Rights in the Wake of Plessy II: Affirmative Action and
Economic Opportunity
Readings:
Rosenberg, The Hollow Hope, pp.39-172 (cont’d)
Civil Rights Act of 1964
Executive Order 11246
Cases:
Philadelphia Plan (1967)
Griggs v. Duke Power Co. (1971)
Regents of California v. Bakke (1978)
United Steel Workers of America v. Weber (1979) -
City of Richmond v. J.A. Croson (1989)
Metro Broadcasting v. FCC (1990)
Adarand Constructors v. Pena (1995)
Grutter v. Bollinger (2003)
Gratz v. Bollinger (2003)
SECOND
MOOT COURT TRIAL
II.
Gender and the Law
A.
Privacy and Reproductive Freedom
Readings:
O’Brien, “A Struggle for Power: Abortion, The Court, and
American Politics” pp. 1-31 (e-r eserve)
Rosenberg, The Hollow Hope, pp.173-268
Cases:
Griswold v. Connecticut (1965)
Roe v. Wade (1973)
Maher v. Roe (1977)
City of Akron v. Akron Center for Reproductive Health (1983)
Webster v. Reproductive Health Services (1989)
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
III.
Sexuality and the Law
A.
Privacy and Lifestyle Issues
Readings: To Be Announced
Cases:
Bowers v. Hardwick (1986)
Romer v. Evans (1996)
Lawrence v. Texas (2003)
THIRD
MOOT COURT TRIAL
WEEK OF
DECEMBER 15TH: FINAL EXAM
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