Readings:

 1) Why govern by means of laws?

Plato on the Rule of Law: excerpted from Plato's dialogue, "The Statesman" (4th century BCE).  Please read with attention to how Plato contrast the virtues and vices of rule by law, as opposed to rule by people.

2) Separation of Powers:

James Madison, Federalist # 51  http://www.constitution.org/fed/federa51.htm

The Fourth Branch: http://www.washingtonpost.com/opinions/the-rise-of-the-fourth-branch-of-government/2013/05/24/c7faaad0-c2ed-11e2-9fe2-6ee52d0eb7c1_story.html

3) Government by Rules

  Antonin Scalia, "The Rule of Law as a Law of Rules," University of Chicago Law Review Volume 56  1989.       

Instructions for finding: 

1. go to UMASS library homepage        http://libweb.uml.edu/

2.On alphabetical list at bottom, select 'L' then select LEXIS-NEXIS ACADEMIC  (log in)

3. Click on "US LEGAL" (lefthand column, second link from the top)  

4. Select "Law Reviews" (7th item from top)    

4. Under "Keyword" enter:  author(scalia) and under "Date" enter From 1989 to 1989.       

 5. Click on link to the article  (please print out and bring to class)

4) Vagrancy Laws and the Rule of Law

Two cases on 'vagrancy' laws: Morgan (1881) and Papachristou (1971)

Handout on Disorderly Conduct statutes

Optional readings:

a. Disorderly conduct statutes:   http://www.boston.com/news/local/massachusetts/articles/2011/03/30/disorderly_conduct_cases_draw_fresh_legal_scrutiny/?page=full

b. Critique of Philip Howard: http://www.slate.com/id/2210172/

5)  Critics of the Rule of Law

a)  The Rule of Law as political mystification

Howard Zinn, Critique of rule of law

1. "It's Not Up to the Court" http://www.progressive.org/mag_zinn1105

2. "Passionate Declarations"

b) The Indeterminacy Thesis

The Commerce Clause cases and Affordable Care Act  handout on ACA

Supreme Court opinion in Shelley v. Kraemer case (1948):  here

(Optional: for more discussion of Shelley v. Kraemer, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=897274)

Dred scott excerpt

6) Natural Law: The idea of a Higher Law

http://www.ashbrook.org/publicat/onprin/v4n2/forte.html

M.L. King, Letter from a Birmingham Jail

7)  Riggs v. Palmer, http://www.courts.state.ny.us/reporter/archives/riggs_palmer.htm

8) The Constitution as Higher Law

Robert George, Natural Law, The Constitution, and Judicial Review:      http://www.natuurrecht.nl/2/index.php?option=com_content&view=article&id=37&Itemid=51

9) Judicial Review

Federalist # 78 (authored by Alexander Hamilton)  http://www.constitution.org/fed/federa78.htm

Optional: Thomas Jefferson's attack on judicial review: http://www.famguardian.org/Subjects/Politics/ThomasJefferson/jeff1030.htm

10) The Originalist Theory of Constitutional Interpretation

Bork, The Tempting of America: 

        Chapter 1 entire (pp. 19- 49)

        Chapter 3 pp. 74-84; 95-100

        Chapter 4 p. 110-126

        Section II in entirety (pp. 133-185)

Buck v. Bell (1927):  http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=274&page=200

11) The Living Constitution: Alternatives to Originalism

Strauss, The Living Constitution

12) Equal Protection of the Law

Kurt Vonnegut, "Harrison Bergeron": http://www.tnellen.com/cybereng/harrison.html

Gay Rights and Equality: Lawrence v. Texas http://www.law.cornell.edu/supct/html/02-102.ZO.html

Disability rights:  Michael Kinsley, "Disabilities and Inabilities"  http://www.slate.com/articles/news_and_politics/readme/2002/06/disabilities_and_inabilities.html

Optional: Ruth Shalit, "Defining Disability Down," New Republic 8/25/1997   [go to library home page, e-journal list, look up New Republic]

SOURCES AND MATERIALS

1) CAROLENE PRODUCTS FOOTNOTE 4 (1938)

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the 14th. [Case citations deleted]It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the 14th Amendments than are most other types of legislation..Nor need we enquire whether similar considerations enter into the review of statues directed at particular religious...or nationaL...or racial minorities; [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry...   Source: 304 U.S. 144 (1938).

2) Equal Protection Clause

Nordlinger v. Hahn, 505 U.S. 1:  

"The Equal Protection Clause of the Fourteenth Amendment, 1, commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Of course, most laws differentiate in some fashion between classes of persons. The Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike. F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)."

Personnel Administrator of Mass. v. Feeney, 442 U.S. 256:

The equal protection guarantee of the Fourteenth Amendment does not take from the States all power of classification. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 . Most laws classify, and many affect certain groups [442 U.S. 256, 272]   unevenly, even though the law itself treats them no differently from all other members of the class described by the law. When the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern. New York City Transit Authority v. Beazer, 440 U.S. 568 ; Jefferson v. Hackney, 406 U.S. 535, 548 . Cf. James v. Valtierra, 402 U.S. 137 . The calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility.  When some other independent right is not at stake, see, e. g., Shapiro v. Thompson, 394 U.S. 618 , and when there is no "reason to infer antipathy," Vance v. Bradley, 440 U.S. 93, 97 , it is presumed that "even improvident decisions will eventually be rectified by the democratic process . . . ."

Certain classifications, however, in themselves supply a reason to infer antipathy. Race is the paradigm. A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. Brown v. Board of Education, 347 U.S. 483 ; McLaughlin v. Florida, 379 U.S. 184 . This rule applies as well to a classification that is ostensibly neutral but is an obvious pretext for racial discrimination. Yick Wo v. Hopkins, 118 U.S. 356 ; Guinn v. United States, 238 U.S. 347 ; cf. Lane v. Wilson, 307 U.S. 268 ; Gomillion v. Lightfoot, 364 U.S. 339 . But, as was made clear in Washington v. Davis, 426 U.S. 229 , and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 , even if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose. [442 U.S. 256, 273]  

Classifications based upon gender, not unlike those based upon race, have traditionally been the touchstone for pervasive and often subtle discrimination. Caban v. Mohammed, 441 U.S. 380, 398 (STEWART, J., dissenting). This Court's recent cases teach that such classifications must bear a close and substantial relationship to important governmental objectives, Craig v. Boren, 429 U.S. 190, 197 , and are in many settings unconstitutional. Reed v. Reed, 404 U.S. 71 ;, Frontiero v. Richardson, 411 U.S. 677 ; Weinberger v. Wiesenfeld, 420 U.S. 636 ; Craig v. Boren, supra; Califano v. Goldfarb, 430 U.S. 199 ; Orr v. Orr, 440 U.S. 268 ; Caban v. Mohammed, supra. Although public employment is not a constitutional right, Massachusetts Bd. of Retirement v. Murgia, supra, and the States have wide discretion in framing employee qualifications, see, e. g., New York City Transit Authority v. Beazer, supra, these precedents dictate that any state law overtly or covertly designed to prefer males over females in public employment would require an exceedingly persuasive justification to withstand a constitutional challenge under the Equal Protection Clause of the Fourteenth Amendment.

Grutter v. Bollinger

Americans With Disabilities Act

3) BILLS OF ATTAINDER

Is the tax on AIG bonuses a violation of ex post facto or bills of attainder?  http://www.foxnews.com/politics/first100days/2009/03/18/congress-invites-court-challenge-aig-taxation-plan-lawyers-say/

SCHEDULE OF TOPICS

   1) Rule of Law and the separation of powers; argument in Heart of Atlanta

  2) Federalism, Separation of Powers

  3) Critics of the Rule of Law: Howard Zinn, Legal Realism, Critical Legal Studies

  4) CLS & Shelley v. Kraemer; the role of Discretion (Equity, Jury Nullification)

  5) Rules vs. standards/discretion; Natural Law versus Positivism

    FIRST EXAMINATION

   6) Natural Law and the Rule of Law; exams returned.  Reading: Forte article (above).

   7) Natural Law: read Riggs v. Palmer (above)

   8) Riggs; Dworkin's theory of interpretation; Natural Law in US history

   9) Natural Law and the US Constitution

    10)  Constitutional Interpretation: Bork and Original Intent

    11)    Originalism and the Problem of Intention

    12)    Originalism Critiqued    

    13)   Equal Protection: read "Harrison Bergeron"

    14)    Equal Protection: what is equality?

    15)    Equal Protection: the Race Paradigm

     16)   Equal Protection: Gender

     17)    SECOND EXAM

      18)      Equal Protection: Disability

       19)     Equal Protection: Affirmative Action

       20)    Equal Protection: Bush v. Gore

       21)   Last Class: Final Essay given out