Constitutional Law of Equal Protection: POSC 403-010 Course Outline and Reading List, Assignments of Political Science

Download Constitutional Law of Equal Protection: POSC 403-010 Course Outline and Reading List and more Assignments Political Science in PDF only on Docsity! Prof. Goldstein Office: 458 Smith Spring 2008 Phone: 831-1931 Office Hours: 3:30-5 T/R and by appt. Preferred appt time, T/R 5-6 POSC 403-010 - Constitutional Law of Equal Protection Books for Purchase Women's Constitutional and Legal Rights, 3rd., Judith Baer and Leslie F. Goldstein (WR on assignment list below) Promises to Keep, Donald Nieman (PK on assignment list below). Supreme Court, Race, and Civil Rights, Abraham Davis and Barbara L. Graham (CR on assignment below) This course deals with those Supreme Court cases that, in interpreting the American Constitution, have shaped the law concerning equality under the law. While the U.S. Constitution did not contain the phrase, “equal protection of the law,” until 1868, it did contain numerous expressions of concern for equal citizenship. We will explore those in the beginning of the course, but the bulk of the course will examine the impact of the 14th Amendment on equal protection, and also that of the 15th and 19th Amendments, which were added to the Constitution in an effort to deepen and broaden equality of citizenship in the U.S. We will focus primarily on cases involving race and gender, because challenges to unequal treatment on these bases have shaped U.S. Constitutional law most dramatically. For a topical outline of themes to be covered in the course, see the bolded headings in the course assignment list below. In studying this material, you should keep various considerations in mind. First, the Court is a policy-maker. Does the public policy created by the decision constitute good public policy? Are the rules of the policy clear, so that citizens and political subordinates of the Court (state legislatures, local police) know what is expected of them? Is the new policy likely to promote a more just society? Is it consistent with fundamental principles of the American political system? Does it aid in the solution of some societal problem, does it make matters worse, does it ignore pressing problems? Does the policy take into account the Court's role in American society? Your inquiry cannot stop there, however, because the Court is not simply a policy-maker--it is a court of law. We obey its decisions, even though we have not elected the Court and even though we cannot "vote the bums out," we obey its decisions because they are explanations of the law (law that has already been adopted by elected legislatures in the form of either the Constitution or national 1 2 statutes). Thus, one also must ask the question of a Court decision, "Is it 'good law'?" I use the phrase "good law" not in the technical legal sense of "valid law" (un-overruled) but in reference to the quality of the legal argument presented in the decision. Is the opinion logically persuasive? Does it convince you that its interpretation of the Constitutional clause, of the statute, or of the precedent is a plausible one? Is the best one? Does the majority opinion convince you that the decision was not just a matter of a yes or no vote by 5 judges but that it really does express the law? Naturally, earlier precedents on the same legal question may have been mistaken, but if many courts on many occasions have believed that a particular law meant a certain thing, the weight of their authority has some bearing on the argument. If a court reversed its position every year on a particular question, would citizen respect for the resulting "law" be very high? In addition to the persuasiveness of the legal argument, the clarity of the argument must be considered. It is clear how far the decision goes? A case dealing with a 19-year-old black female may yield a rule covering only black female minors, or all minors, or all females, or all blacks, or all racial minority members, or all citizens. Is the rule a clear one? At this point policy and legal considerations may merge: possible implications of the opinion may be poor public policy but alternative implications may produce good public policy--is it clear which implications the Court intends? (For, if not, the decision may produce bad policy in the long run despite its short term good results.) You should read carefully the assigned cases BEFORE the class in which they are discussed. ALWAYS BRING THE CASE TO CLASS FOR CONSULTATION DURING DISCUSSION. ALL EMAILED CASES MUST BE PRINTED OUT SO THAT YOU CAN BRING THEM TO CLASS WITH YOU ON THE DAY THEY ARE TO BE DISCUSSED (This does not include the Goldstein reading assigned for the first week of class, since it is not a court case.) In order to make sure you have understood the basics of the case, and as a useful record to have in your notes at exam time, you should prepare a "brief" of each case. These briefs will not be collected; they are for YOUR use. A brief should contain the following information (in a short statement in your own words): 1) Facts of the case: Who is the appellant? Who is the respondent? What situation produced the case? What legal action has been taken so far? 2) Issue: Should be stated as a yes/no question. Should include a reference to the constitutional clause that is involved, e.g., is it a violation of the Fourteenth Amendment equal protection clause to require racial separation of children in state-run schools?" 3) Holding: Either a "yes" or a "no". (Answer to the "issue"). If there are several issues, there must be several holdings. 5 their class notes if politely and in a reasonable manner requested to do so. Once you have reviewed those notes, I am happy to help you understand whatever you missed. There is one day of required attendance—the day of the MOOT COURT in which everyone participates. If you find yourself ill that day, or have other serious reason for absence, I expect the reason to be documented. Otherwise there will be a grade penalty. ASSIGNMENTS (To be read in advance of date indicated at left.) ALWAYS BRING CASE READINGS TO CLASS. IF THEY HAVE BEEN SENT TO YOU BY EMAIL, YOU NEED TO PRINT THEM AND BRING THE HARD COPY TO CLASS. Feb.12 Course Introduction/ Historical Background Feb.14 I. Equality and Inequality Prior to the 14th Amendment --PK 3-49; CR 1-17 A. The Constitution—read it on the internet and bring a printed-out copy to class, with an honest question about the Constitution’s meaning. So that your question will not simply be one of definition, here is one site that has links to an explanatory glossary of technical words-- http://www.usconstitution.net/const.html Look for mentions of slavery in the Constitution. B. Slavery—3 overviews “Slavery and the Marshall Court” by L.F.Goldstein to be handed to class on 2/12 PK pp.3-49; CR pp.1-17 Feb. 19 II. Introduction to Fourteenth Amendment-- PK, 55-77 & 50-52 Slaughterhouse Cases (1873)--handout; CR 16-17, 35-38; WR top of 11-mid 14 III. Cases of the “Reconstruction-Redemption” Period --to accompany cases for 2/19 thru 2/26 read PK, 78-113; CR 17-28 Feb. 21 A. Anti-equality U.S. v. Reese (1876) CR 38-40 U.S. v. Harris (1883) CR 44-45 Virginia State Constitutional Convention Debates and 1904 Constitution--handout Feb.26 B. Pro-Equality Strauder v. West Virginia (1880)--CR 42-43 Ex Parte Yarborough (1884) --email Yick Wo v. Hopkins(1886)--CR 48-49 6 Bailey v. Alabama (1911) --CR 54-56 Feb.28 IV. “Separate but Equal” CR: review 21-24 and top 26; read 59 (Box 2.1), 66-69 Civil Rights Cases (1883)--CR 46-48 Hall v. DeCuir (1878)--CR 40-1 Interstate Commerce Act of 1887 §3--email Plessy v. Ferguson (1896) --CR 50-53 Berea College v. Kentucky (1908)-- CR 53-54 V. 20th Century Issues: to accompany these cases for 3/1 thru 3/13, read PK 114-200 Mar.4 A. Housing--CR 66-69, Buchanan v. Warley (1917)--CR 91-2 Shelley v. Kraemer (1948)--CR 92-4 Jones v. Alfred A.Mayer (1968)--CR 197-200 Mar.6 B. Voting --CR 60-66, 131-7 Nixon v. Herndon (1927)--CR 86-7 Smith v. Allwright (1944)--CR 89-91 Gomillon v. Lightfoot (1960)--CR 172-3 So.Caro. v. Katzenbach (1965)--CR 173-6 Mar. 11 C. State-run schools--CR 79-81, CR 117-128 Mc Laurin v. Oklahoma (1950) --CR 105 Sweatt v. Painter (1950) --CR 106-107 Brown v. Bd. I and II (1954) -- CR 164-168 Green v. New Kent County (1968)--CR 168-9 Mar. 13 D. Congressional Enforcement Power --review Interstate Commerce Act (1887); Civil Rights Cases (1883); and Jones v. Alfred A Mayer (1968); also read CR 81-84 and 149-158 Heart of Atlanta Motel v. U.S. (1964) CR 195-197 U.S. v. Guest (1966) CR 201-204 plus email Griffin v. Breckinridge (1971) CR 204-206 Runyon v. McCrary (1976)--CR 284-287 U.S. v. Morrison (2000) WR 615-630 Mar. 18 E. Strict Scrutiny and Race --CR 76-78; WR 46-50 7 Korematsu v. U.S. (1944) --CR 100-103 McLaughlin v. Florida (1964) --WR 47-48 Loving v. Virginia (1967)--CR 160-1; 214-6. Mar. 20 VI. Affirmative Action, PK 200-227; CR 238-250, 369-373 Fullilove v. Klutznick (1980)--CR 320-324 Johnson v. Transportation Agency (1987) --WR 222-237 Richmond v. Croson (1989) --CR 430-434 Grutter v. Bollinger (2003)-- email Mar. 25 VII. Equal Protection beyond Race A. Fundamental Rights to Vote, to Travel, to Education Reynolds v. Sims (1964)--email Shapiro v. Thompson (1969)--email Plyler v. Doe (1982)--email Mar. 27 B. Rigging Political Rules against a Group Hunter v. Erickson (1969)--CR 200-201 (& review 152-3) Romer v. Evans (1996)--email SPRING BREAK (3/28 - 4/6) TUESDAY Apr. 8 MIDTERM EXAM. Apr. 10 VIII. Gender and Protective Labor Legislation ( WR-review 46-51 ) A. Gender-based laws in the Lochner era Muller v. Oregon (1908) – WR 25-6, 32-34 Radice v. New York (1924) – WR 43-44 B. Pregnancy and Differential Treatment -- G.E. v. Gilbert (1976) and the PDA—WR 201-208 Apr. 15 Calif. Fed. v. Guerro (1987) –WR bot.210-222 UAW v. Johnson Controls (1991) –WR 189-197 Apr. 17 IX. Gender Meets the Privileges or Immunities Clause Bradwell v. Ill. (1873) –review WR 11-14; read 14-18 Minor v. Hapersett (1875) – WR 18-23 X . Gender and the Equal Protection Clause