During the semester, we shall see that most of the serious difficulties (and there are many) in the politics of civil liberties arise from conflicts be­tween our commitments to two or more positive values.  There are, for example, inevitable and recurrent conflicts (despite our attempts to ignore them) between the values of liberty and equality.  As Felix Frankfurter once wrote, these and other such conflicts are "what the Greeks thousands of years ago recognized as a tragic issue, namely the clash of rights, not the clash of wrongs."  In this course, we examine these clashes in light of the broader philosophical and institutional problems of the constitutional order.  I hope to show that constitutional "answers" to problems like those of abortion, freedom of speech, and affirmative action require a coherent understanding of the Constitution, and of the assumptions it makes about human nature and the proper ends of government and civil society. 

We will, therefore, examine the doctrinal development of specific liberties and rights, such as due process and privacy, but we shall consider them in a broader theoretical context.  We shall want to know what overall conception of liberties, rights, and governmental powers most nearly reflects and promotes our best understanding of the Constitution and the polity it both constitutes and envisions.  In addressing these issues we will confront a welter of difficult and controversial questions.  It is unlikely that we will succeed in our attempts to answer them fully or finally.  What we can hope to achieve, however, is an improved and more sophisticated appreciation of the importance (or not) of our commitment to civil liberties, and of the sacri­fices we must make if we choose to honor that commitment.

         a. SUBSTANCE.  What is the "law" after the case was decided?  What is the holding of the judges in the case?  Is it consistent with prior cases?  How does the case fit into the "doctrine" on this subject matter? 

         b. ASSUMPTIONS.  What assumptions does the opinion make to support its argument? What does it assume, for example, about the Constitution?  About human nature?  About the framers?  Are these assumptions consistent with the rest of the argument? Where is the reasoning deficient, unsupported, or im­plausible? 

         c. HISTORY.  It is quite possible to see judicial opinions as political artifacts, as "period pieces" that value ideas quaintly idealistic or long since tarnished.  Is history a relevant source of constitutional meaning? 

         d. JUDICIAL ROLES. Almost every significant case in civil liberties must come to terms with questions about the proper role of the judiciary in a constitutional democracy.  As we shall see throughout the course, questions about relative institutional competencies are central to a complete under­standing of the constitutional order. 

         e. POLITICAL THEORY. Serious controversies in civil liberties require of judges that they possess a conception of the nature of the American political system and the importance of civil liberties to that system.  Is that concep­tion--whether explicit or implicit--consistent with the result in the case?  Is it coherent?  Is it desirable?

In addition, please purchase or download: Hamilton et al., The Federalist Papers, any edition.

Recommended:
van Geel, Understanding Supreme Court Opinions (2d ed.)

I will distribute the second paper topic in class on March 30. It will be due in class on April 13.

There will be a final examination at a time and place to be determined. The final examination is worth 30% of your course grade.

Class participation is worth 20% of your course grade.

Assigned:
The Constitution of the United States of America

Assigned:
KFJ, chapters 1 & 2
Bork, "Tradition & Morality in Constitutional Law"
Brennan, "The Constitution: Contemporary Ratification"

Assigned:
KFJ, chapter 3

Recommended:
Arkes, Beyond the Constitution
Burgess, The Contest for Authority
Snowiss, Judicial review and the Law of the Constitution
Fisher, Constitutional Dialogues

Assigned:
KFJ, chapter 9

Recommended:
Richard Cortner, The Supreme Court and the Bill of Rights
Charles Fairman, "Does the Fourteenth Amendment Incorporate the Bill of Rights?"
Michael Curtis, No State Shall Abridge

Assigned: KFJ, chapter 10

Recommended:
Epstein, Takings
Horwitz, The Transformation of American Law
Ackerman, Property & the Constitution
MacPherson, "Human Rights as Property Rights"
Radin, "Property & Personhood"
Siegen, Economic Liberties & the Constitution

Assigned:
KFJ, chapter 11

Recommended:
Dworkin, Taking Rights Seriously
Grey, "Eros, Civilization, and the Burger Court"
Ely, "The Wages of Crying Wolf: Roe v. Wade"
Glendon, Abortion & Divorce in Western Law
Allen, Uneasy Access: Privacy for Women
Brill, Nobody's Business
Dworkin, Life's Dominion
Garrow, Liberty & Sexuality

Assigned:
KFJ, chapter 12

Recommended:
Schauer, Free Speech
Bollinger, The Tolerant Society
Levy, Emergence of a Free Press
Shiffrin, The First Amendment, Democracy, and Romance
Greenawalt, Fighting Words

Assigned:
KFJ, chapter 12 (continued)

Recommended:
Meiklejohn, Free Speech & Its Relation to Self-Government
Davis, Decisions & Images

Assigned:
KFJ, chapter 13

Recommened:
Locke, Letter on Toleration
Choper, Securing Religious Liberty
Howe, The Garden & the Wilderness
Carter, The Culture of Disbelief
Levy, The Religion Clauses
Richards, Toleration & the Constitution
Smith, Foreordained Failure

Assigned:
KFJ, chapter 13 (continued)

Assigned:
KFJ, chapter 14

Recommended:
Dworkin, Taking Rights Seriously
Fiss, "Groups & the Equal Protection Clause"
Kluger, Simple Justice
Gunther, "In Search of an Evolving Doctrine"
Ely, "The Constitutionality of Reverse Discrimination"

Assigned:
KFJ, chapter 15

Recommended:
Baer, The Fourteenth Amendment
VanBurkleo, "Belonging to the World"