Table of Contents
Syllabus (TXT; HTML; PDF; DOC)
Articles
Mid-Term Exam
Cases and Opinions
Articles
2023-08-30: Solum How NFIB v. Sebelius Affects the Constitutional Gestalt 2013
2023-08-30: Balkin The Recent Unpleasantness: Understanding The Cycles of Constitutional Time 2019
2023-09-06: Bickel Exerpt from The Least Dangerous Branch 1962
2023-09-06: Graber The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order 2008
2023-09-06: Dorf Majoritarian Difficulty and Theories of Constitutional Decision Making 2010
2023-09-11: Wechsler Toward Neutral Principles of Constitutional Law 1959
2023-09-11: Added Bork Neutral Principles and Some First Amendment Problems 1971
2023-09-11: Sunstein Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion, and Surrogacy)Pornography, Abortion, and Surrogacy) 1992
2023-09-13: Sandefur In Defense of Substantive Due Process 2012
2023-09-13: Green Twelve Problems with Substantive Due Process 2018
2023-09-18: Berger Ninth Amendment 1980
2023-09-18: Abrams The Ninth Amendment and the Protection of Unenumerated Rights 1988
2023-09-18: Seidman Our Unsettled Ninth Amendment: An Essay on Unenumerated Rights and the Impossibility of Textualism 2010
2023-09-18: Williams, Ryan C. The Ninth Amendment as a Rule of Construction 2011
2023-09-20: Constitutional Interpretation
Chapter 2 in part
2023-09-20: Marshall The Constitution: A Living Document 1987
2023-09-20: Brennan Contemporary Ratification 1985
2023-09-20: Rehnquist The Notion of a Living Constitution 1976
2023-09-25: Constitutional Interpretation
Chapter 6
2023-09-25: Stevens Originalism and History 2014
2023-09-25: Scalia Originalism: The Lesser Evil 1989
2023-09-25: Meese Jurisprudence of Original Intent 1985
2023-09-27: Dworkin Excerpt (PDF) from Freedom's Law 1996
2023-09-27: Whittington Dworkin's "Originalism": The Role of Intentions in Constitutional Interpretation 2000
2023-10-02: Ward Critics Call it Theocratic and Authoritarian (PDF) history article
2023-10-02: Vermeule Beyond Originalism 2020
2023-10-02: Hammer Manly Originalism 2022
2023-10-02: Hammer Common Good Originalism 2021
2023-10-02: Added Hammer The Telos of the American Regime 2021
2023-10-04: Constitutional Interpretation
Chapter 4
2023-10-04: Amar Intertextualism 1999
2023-10-04: Gorsuch Bostock v. Clayton County (2020)
2023-10-04: Spivey Torturing Textualism (PDF) ??
2023-10-09: Brennan Baker v. Carr (1962)
2023-10-09: Ely Democracy and Distrust
Supplemental:
2023-10-09: Schacter, Jane Ely at the Altar: Political Process Theory through the Lens of the Marriage Debate 2011
2023-10-09: Smith, Evan Representation Reinforcement Revisited: Citizens United and Political Process Theory 2013 (PDF)
2023-10-09: Tribe, Laurence The Puzzling Persistence of Process-Based Constitutional Theories 1980
Criticisms of Process Theory in Richard L Hasen's The Supreme Court and Election Law:
- First, the theory has not been successful in limiting judicial power: courts have not confined themselves to intervening in election law cases only in the face of political market failure (page 5).
- The second problem with process theory is rthat it masquerades as a purely procedural rather than a substantive basis for review of political cases. (page 5) See Tribe Puzzling Persistence and Mark Tushet The Contributions of John Hart Ely to Constitutional Theory.
- The third problem with process theory is that, despite its implicit substantive dimension, it is a shallow theory. It says nothing about how the courts should intervene in the face of political market failure. (page 6) See Daniel Ortiz The Allure and Failure of Process Theory.
2023-10-11: Constitutional Interpretation
Chapter 11
2023-10-11: Breyer Our Democratic Constitution 2002
2023-10-11: Posner Against Constitutional Theory 1989
2023-10-16: Constitutional Interpretation
Chapter 9
2023-10-16: Sunstein, Cass Testing Minimalism: A Reply 2005
2023-10-18: Alexander, Larry; Schauer, Frederick Defending Judicial Supremacy: A Reply 2000
2023-10-18: Sager, Lawrence Fair Measure: The Legal Status of Underenforced Constitutional Norms (PDF) 1978
2023-10-18: Bush v. Gore (2000)
Supplemental:
2023-10-18: Tribe, Laurence The Unbearable Wrongness of Bush V. Gore 2002
2023-10-18: Lund, Nelson “Equal Protection , My Ass!”? Bush v. Gore and Laurence Tribe’s Hall of Mirrors (PDF) 2003/8
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Mid-Term Exam (PDF, Word)
Completed exam (HTML, PDF)
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Cases and Opinions
2023-10-23: Class curtailed due to water outage
2023-10-25: Mid-Term Exam Review
2023-10-30, 11-01: Dobbs v. Jackson Women's Health Organization (2022)
2023-11-06, 08: West Virginia v. Environmental Protection Agency (2022)
2023-11-13, 15: New York State Rifle & Pistol Association v. Bruen (2022)
2023-11-20: Kennedy v. Bremerton School District (2022)
2023-11-27: 303 Creative LLC v. Elenis (2023)
2023-11-29: Discussion of Kennedy v. Bremerton School District (2022)
and 303 Creative LLC v. Elenis (2023)
2023-12-04, 06: Students for Fair Admissions, Inc. v. President and Fellows oF Harvard College (2023)
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Final Exam
Essay Question:
You have been nominated for a seat of the Supreme Court of the United States. Congrats! (I'm sure it is the result of your excellent training in law at UMD.) Senators have provided questions to you for your review prior to your testimony. Please respond to the following question:
The Supreme Court concluded that there is no right to an abortion in the Constitution relying on the text of the Constitution and the Nation's history and tradition regarding abortion. The Court also concluded that Constitution does not allow for consideration of race by colleges and universities in making admission decisions. The Court referenced the text of the 14th Amendment but did not discuss history and tradition. Can you reconcile these two cases? Are they logically consistent? Based upon these two cases alone, what methodology should (must) the Court employ in deciding cases of disputed constitutional rights? How would you have decided these two cases?
You may not "pull a Ginsberg" and refuse to answer these questions. Your answer should be no longer that 3 pages, single spaced with double spacing between paragraphs, 12 point Times New Roman typeface.
Final Essay (doc, odt, rtf)
Mulitple Choice Exam:
(txt, html). My score: 60/78; High 68/70; Upper Quartile 56; Median 50; Mean 49.52; Lower Quartile 46; Low 0.
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