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Master of American History and Government
Ashland University
AHG 641:
The Supreme Court
Sunday, July 27 to Friday, August 1, 2008
Instructors: Anthony Peacock and Jeffrey Sikkenga
Course Focus:
The US Supreme Court has played a dramatic role in American history. For good or ill, the Court has handed down many rulings that have defined our constitutional order and thereby affected the most basic ideas of who we are as Americans. This course is an intensive study of the highest court in the federal judiciary, focusing on the Supreme Court's judicial power, the relationship between the Court and the other branches of the federal government, and the Court's interpretation of some of the most important parts of the Constitution.
How did the Supreme Court go from the "least dangerous branch" - as Alexander Hamilton described it in 1788 - to the final, authoritative interpreter of the Constitution? And how has the Court's interpretation of the Constitution changed over time? To address these important questions, we will examine constitutional issues of judicial review, race and equality, freedom of speech, the right to privacy, the president's war powers, and civil liberties and national security.
Course Grading:
- Participation: 25%
- Exam: 75%
Students auditing the course as a part of a Teaching American History Grant program must complete the readings and fully participate in the seminars during the week.
Required Texts:
- The Federalist (Cooke edition)
- Rossum and Tarr, American Constitutional Law, Volumes I and II, 6th edition
- Course readings packet (CP)
Schedule
Sunday, July 27 – "vested in one supreme Court…"
4:30 - 6:00pm:
Session 1 – The Structure of the Federal Courts and the Power of Judicial Review (Professors Peacock and Sikkenga)
Focus:
What is the Supreme Court's role in the federal court system and what are its powers?
Required Readings:
- Constitution, Article III
- Rossum and Tarr, American Constitutional Law, Vol. I, Chs. 2 and 3
7:30 - 9:00pm:
Session 2 – Ashbrook Lecture (Attendance Required)
Monday, July 28 – The Supreme Court's "Judicial Power"
9:00 - 10:30am:
Session 3 – Marbury v. Madison and the Power of Judicial Review (Professor Peacock)
Focus:
What theory of judicial review did the Court adopt in Marbury and was it consistent with Hamilton's discussion in The Federalist No. 78?
Required Readings:
- The Federalist No. 78
- Brutus XI (CP)
- Marbury v. Madison (1803)
10:45am - 12:15pm:
Session 4 – The Debate over Judicial Review since Marbury (Professor Sikkenga)
Focus:
Should the Supreme Court be the final, authoritative interpreter of the Constitution?
Required Readings:
- Cooper v. Aaron (1958)
- Jefferson, "Against Judicial Review" (CP)
- Jackson, "Veto Message of 1832" (CP)
- Lincoln, "The Authority of the Supreme Court" (CP)
- FDR, "Radio Broadcast, March 7, 1937", (CP)
Recommended Reading:
- Schotten, "Justice Joseph Story and the Founders' Constitution" (CP)
4:30 - 6:00pm:
Session 5 – The Constitution and Its Interpretation (Professors Peacock and Sikkenga)
Focus:
What are the Constitution's ends and how should the Supreme Court approach constitutional interpretation? Given the arguments for and against the various approaches, in your judgment what is the best way to interpret the Constitution? Why?
Required Readings:
- The Federalist No. 10
- Rossum and Tarr, American Constitutional Law, Vol. I, Ch. 1
- Meese, "A Jurisprudence of Original Intention" (CP)
- Brennan, "Constitutional Interpretation" (CP)
- Scalia, "The Living Constitution" (CP)
Recommended Reading:
- Watson, "The Jurisprudence of William Joseph Brennan, Jr. and Thurgood Marshall" (CP)
- Rossum, "The Textualist Jurisprudence of Antonin Scalia" (CP)
- Michael H. v. Gerald D. (1989) (CP)
Tuesday, July 29 – The Supreme Court's Understanding of Constitutional Equality and Liberty
9:00 - 10:30am:
Session 6 – Race and Affirmative Action (Professor Peacock)
Focus:
Should racial preferences be allowed under the Constitution?
Required Readings:
- Constitution, Amendment XIV
- Brown v. Board of Education (1954)
- Adarand Constructors, Inc. v. Pena (1995)
- Grutter v. Bollinger (2003)
10:45am - 12:15pm:
Session 7 – Race and Representation (Professor Peacock)
Focus:
Should racial and ethnic groups be entitled to representation in American law?
Required Readings:
- Baker v. Carr (1962)
- Thornburg v. Gingles (1986)
- Shaw v. Reno (1993)
- League of United Latin American Citizens v. Perry (2006) (CP)
4:30 - 6:00pm: Session 8 – Liberty and Freedom of Speech: Is Everything Protected? (Professor Sikkenga)
Focus:
According to the Court, what kind of speech is protected by the First and Fourteenth Amendments? Why? Given the principles and purposes of free speech, was the Court's decision correct in Texas v. Johnson?
Required Readings:
- Constitution, Amendment I
- Rossum and Tarr, American Constitutional Law, Vol. 2, Chs. 3 & 5
- Gitlow v. New York (1925)
- Chaplinsky v. New Hampshire (1943) (CP)
- Brandenburg v. Ohio (1969)
- Texas v. Johnson (1989)
Wednesday, July 30 – The Supreme Court on Freedom of Speech and the Right to Privacy
9:00 - 10:30am:
Session 9 – Coerced Speech, Prior Restraints, and the Tension between the Speech and Religion Clauses of the First Amendment (Professor Peacock)
Focus:
What are the competing underlying principles of freedom of speech in Dale, New York Times, and Rosenberger?
Required Readings:
- Boy Scouts of America v. Dale (2000)
- New York Times Company v. United States (1971)
- Rosenberger v. Virginia (1995)
10:45am - 12:15pm:
Session 10 – Liberty and the Right to Privacy (Professor Sikkenga)
Focus:
What is the foundation of the right to privacy, according to the Court? Did the right to privacy change from Griswold to Eisenstadt?
Required Readings:
- Brandeis and Warren, The Right to Privacy (1896) (CP)
- Olmstead v. US (1928)
- Katz v. US (1967)
- Griswold v. Connecticut (1965)
- Eisenstadt v. Baird (1972) (CP)
4:30 - 6:00pm:
Session 11 – Liberty, Privacy, and Autonomy (Professor Sikkenga)
Focus:
What is the Court's underlying view of constitutional "liberty" in Bowers and Glucksberg? Did the Court adopt that view in Lawrence?
Required Readings:
- Rossum and Tarr, American Constitutional Law, Vol. 2, Ch.11
- Bowers v. Hardwick (1986)
- Washington v. Glucksberg (1997)
- Lawrence v. Texas (2003)
Thursday, July 31 – The Supreme Court and War Powers
9:00 - 10:30am:
Session 12 – Early Controversies over the President's Constitutional Power (Professor Sikkenga)
Focus:
Does the president have power in foreign affairs beyond the enumerated powers and duties in Article II? What are the conflicting arguments of Madison and Hamilton? Which view of the president's powers did the Court adopt in The Prize Cases?
Required Readings:
- French-American Treaty (1778) (CP)
- Washington, "Proclamation of Neutrality" (CP)
- Hamilton, Pacificus #1 (CP)
- Madison, Helvidius #1 (CP)
- The Prize Cases (1863)
10:45am - 12:15pm:
Session 13 – The President's Prerogative and Foreign Affairs Powers (Professor Peacock)
Focus:
What is the Court's understanding of executive power and national sovereignty in these cases?
Required Readings:
- In Re. Neagle (1890)
- Youngstown Sheet & Tube Company v. Sawyer (1952)
- United States v. Curtiss-Wright Export Corporation (1936)
4:30 - 6:00pm:
Session 14 – The Debate over Presidential and Congressional War Powers (Professor Peacock)
Focus:
Can the president commit the country to war on his own and conduct a war free of any judicial intervention?
Required Readings:
- Louis Fisher, Presidential War Power, Preface, Chs. 1 and 11
- John Yoo, The Powers of War and Peace, Preface, Chs. 1 and 5 (CP)
Friday, August 1 – War Powers and Liberty
9:00 - 10:30am:
Session 15 – War and Individual Rights (Professor Peacock)
Focus:
Can the individual rights of citizens and non-citizens be disregarded or subordinated to national security objectives during a time of war?
Required Readings:
- Ex Parte Milligan (1866)
- Korematsu v. United States (1944)
- Ex Parte Quirin (1942)
- Rasul v. Bush (2004)
10:45am - 12:15pm:
Session 16 – Final Thoughts: Individual Liberty and the War on Terror (Professors Peacock and Sikkenga)
Focus:
Did the Supreme Court make the right decision in Hamdi?
Required Reading:
2:00 - 3:30pm:
Session 17 – Final Exam
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