Philosophy 6242.10 – Philosophy, Law, and Social PolicySpring 2014
Office Hours: Thu 2:30-4, Fri 10:30-11:30 and by appointment3.0 Credits
Phone: 202-994-6911Professor Jeffrey Brand
Email: epartment of Philosophy
Office: 523 Phillips HallClassroom: Phillips Hall 414A
Topic: Theoretical Perspectives on Judicial Review
Requirements
I expect active class participation every week (15%) and a term paper of 5,000-6,000 words (70%)on some aspect of constitutional theory and/or interpretation. You willdevelop your topic in consultation with me. You must also participate in Term Paper Workshops in the final weeks of the seminar. You will present your draft to the seminar, read other students’ drafts, and offer verbal critiques thereof (15%). Late work is subject to penalty.
If you don’t participate actively every week, then you could receive as few as zero points for class participation: a grade of A (95%), for example, becomes a grade of B- (80%). Merely attending class and listening earns no points. Occasional participation earns only partial credit.
This syllabus is subject to change at my discretion, with notice provided via email. Check your email daily. Email is also the best way to contact me.
Goals and Learning Outcomes
At the end of this course students should be able to:
- Recall, explain, and discuss theories of judicial review and constitutional interpretation;
- Interpret basic legal-theoretic texts and summarize the arguments presented;
- Compare and contrast positions;
- Evaluate and criticize theoretical arguments;
- Construct simple arguments for positions on judicial review and constitutional interpretation.
Research
Your term paper will require some legal research, possibly lots of it. You can conduct much of this research using web-based scholarly toolswhich I can help you learn to use, including LEXIS JSTOR and HEINOnline Many monographs and treatises are available in Gelman Library and the Washington Research Library Consortium. You may also need to visit the Jacob Burns Law Library. Non-law students cannot use Burns fromApril 16through May 2.
Readings
Many of the selections are dense and lengthy. One purpose of a graduate course is to develop your ability to efficiently assimilate difficult material. Read each text prior to the assigned date and bring it to class. Some readings are broken up into excerpts assigned on different dates. Pay attention to the specific sections assigned so as to avoid superfluous reading.
Materials
Most readings are posted on Blackboard (Bb) under Electronic Reserves Bring these readings to class when assigned, in paper or electronic form. Three required books are also available for purchase at the GW bookstore and online booksellers:
∙ Bruce Ackerman, We the People: Foundations (Belknap Press, 1993) (you need vol. I, Foundations, not vol. II, Transformations)
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∙ Jack M. Balkin, Living Originalism (Belknap Press, 2011) (also available for GW students to borrow for free as an e-book on EBSCO)
∙ Antonin Scalia, A Matter of Interpretation (Princeton University Press, 1998) (also available as e-book at
Overview
Courts in the United States sometimes invalidate state legislation, executive orders, and acts of Congress on constitutional grounds. A court deciding whether to do this is engaged in the practice of judicial review. In school we are taught that judicial review is part of our “system of checks and balances.” This reassuring image obscures extraordinary controversy in the theory and practice of judicial review. How should we understand it? What, if anything, can justify it? How, if at all, should courts approach the task? How should they understand the constitutions to which they appeal? Is there an acceptable general method for judicial review? Is one method better than all the others? What role, if any, should value judgments and “politics” play in judicial review? Can we defend a method of judicial review without considering its policy implications? Will the best method of judicial review always generate the best results? Are the results of a method all that matters? Could a judge use the right method, but reach the wrong conclusions?
Theorists offer a perplexing range of answers to these questions. Some see judicial review as an institution of dubious political legitimacyand seek to curtail it. Others welcome it as a vital safeguard against legislative and executive abuses. Some theorists instruct judges to interpret the text of a constitutional provision as that provision would have been understood at the time it was enacted. Others regard such “originalism”as misguided, even incoherent. Some theorists think all constitutional interpretation involves moral and political judgment, others think that only bad constitutional interpretation does.
This course invites you to think alongside some of the most important theorists of the U.S. Constitution from the last thirty years. Many of these authors are “celebrity” legal scholars at major universities. Some are prominent federal judges. They generally write at an abstract, theoretical level.
Although I’m a licensed attorney as well as an analyticalphilosopher, this isn’t a pre-law course or a course in the “nuts and bolts” of constitutional doctrine. It’s no substitute for courses in constitutional law. It’s a philosophy course. However, you’ll need to learn something about American constitutional law as we proceed. If you encounter a concept you don’t understand, it’s your responsibility to research it. I’m here to help you, of course.
I recommend the following website for a general introduction to the Constitution:
Never cite websites as authorities in your scholarly work unless the site is the most authoritative source available, which is rarely the case. Consult me if you need guidance in this area.
I also recommend consulting a good hornbook or casebook, such as: Erwin Chemerinsky, Constitutional Law: Principles and Policies, 2nd ed. (New York: Aspen Law & Business, 2002); Laurence H. Tribe, American Constitutional Law, 3rd ed. (New York: Foundation Press, 2000);John E. Nowak and Ronald D. Rotunda, Constitutional Law, 6th ed.(St. Paul, Minn.: West Group, 2000).
Academic Integrity
All examinations, papers, and other graded work products and assignments are to be completed in conformance with The George Washington University Code of Academic Integrity. It states, in part, “Academic dishonesty is defined as cheating of any kind, including misrepresenting one’s own work, taking credit for the work of others without crediting them and without appropriate authorization, and the fabrication of information.” For the remainder of the code, see:
Support for Students Outside the Classroom
Disability Support Services (DSS)
Any student who may need an accommodation based on the potential impact of a disability should contact the DSS office at 202-994-8250 in the MarvinCenter, Suite 242, to establish eligibility and to coordinate reasonable accommodations. For additional information please refer to:
UniversityCounselingCenter (UCC)202-994-5300
The UCC offers 24/7 assistance and referral to address students’ personal, social, career, and study skills problems. Services for students include:
-crisis and emergency mental health consultations
-confidential assessment, counseling services (individual and small group), and referrals
Security
In the cases of an emergency, if at all possible, the class should shelter in place. If the building in which the class is held is affected, follow the evacuation procedures for the building. After evacuation, seek shelter at a predetermined rendezvous location.
Schedule
Constitutionalism, the Counter-Majoritarian Difficulty, and Judicial Review
1/14Geoffrey Stone et al., “The Role of the Supreme Court in the Constitutional Order”
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (virtual child pornography)
Over the next two weeks: readPhilip Bobbitt, “Constitutional Interpretation”and the Constitution of the United States
1/21Jeremy Waldron, “The Core of the Case Against Judicial Review”
Optional: W. J. Waluchow, A Common Law Theory of Judicial Review
Originalism
1/28Mitchell N. Berman, “Originalism is Bunk,” pp. 3-27
Shelby County v. Holder, 570 U. S. ____ (2013) (Voting Rights Act)
2/4Antonin Scalia, A Matter of Interpretation, pp. 3-47
Roper v. Simmons, 543 U.S. 551 (2005) (juvenile death penalty)
Optional: Gary Lawson and GuySeidman, “Originalism as a Legal Enterprise”
2/11Berman, “Originalism is Bunk,” pp. 37-96
U.S. v. Windsor, 570 U.S. ___ (2013) (Defense of Marriage Act)
2/14Post 300-word paper proposal and initial bibliography (≥ 10 sources) on Bb by 11:59pm. Select the Proposal linkin the Files section. Upload your proposal and bibliography as one file (.doc, .docx, .rtf).
Moralism
2/18Ronald Dworkin, Freedom’s Law
Michael McConnell and Ronald Dworkin, “Assisted Suicide”
Washington v. Glucksberg, 521 U.S. 702 (1997) (assisted suicide)
Optional: Ronald Dworkin et al., “The Philosopher’s Brief”
Libertarianism
2/25Richard A. Epstein, Takings
Kelo v. City of New London, 125 S. Ct. 2655 (2005) (eminent domain)
Dualist Democracy
3/4Bruce Ackerman, We the People: Foundations, chs. 1-2, 5-6
U.S. v. Lopez, 514 U.S. 549 (1995) (Commerce Clause, firearms regulation)
Spring Recess
Living Originalism
3/18Jack M. Balkin, Living Originalism, chs. 2-3, 5
3/21Post first draft of term paper for instructor by 11:59pm
3/25Balkin, Living Originalism, chs. 8, 11-13
3/28Workshop I participants post latest draft for classmates by 11:59pm
4/1Term Paper Workshop I
4/4Workshop II participants post latest draft for classmates by 11:59pm
4/8Term Paper Workshop II
4/11Workshop III participants post latest draft for classmates by 11:59pm
4/15Term Paper Workshop III
4/16Burns Law Library closes to non-law students
4/18Workshop IV participants post latest draft for classmates by 11:59pm
4/22Term Paper Workshop IV
5/3Burns Law Library reopens to non-law students
5/5Post final draft of term paper by 11:59pm. Use .doc, .docx, or .rtf. No email or hard copies. Late submissions will be penalized.
1. You may choose to schedule a meeting with me after the semester ends to discuss your paper. This is strictly optional.
2. Those who would like detailed, written feedback on a final draft must request it by leaving a voicemailat my office (202-994-6911) no later than May 2. I don’t accept in-person or email requests for written feedback. This option is primarily intended for those who plan to develop their draft into a thesis or publication, but it is available to anyone.
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