Philosophy 6242.10 – Philosophy, Law, and Social Policy
Office Hours: Thu 2:30-4, Fri 10:30-11:30 and by appointment
Phone: 202-994-6911
Email: jbb@gwu.edu
Office: 523 Phillips Hall
Spring 2014
3.0 Credits
Professor Jeffrey Brand
Department of Philosophy
Classroom: 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 will develop
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:
1. Recall, explain, and discuss theories of judicial review and constitutional interpretation;
2. Interpret basic legal-theoretic texts and summarize the arguments presented;
3. Compare and contrast positions;
4. Evaluate and criticize theoretical arguments;
5. 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 tools which I can help you learn to use,
including LEXIS http://web.lexis-nexis.com/universe, JSTOR http://www.jstor.org, and
HEINOnline http://heinonline.org.proxygw.wrlc.org/HOL/. 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 from April 16
through 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.
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Materials
Most readings are posted on Blackboard (Bb) under Electronic Reserves
http://gwu.blackboard.com/. 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)
∙ 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 http://pup.princeton.edu/)
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 legitimacy and 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 analytical philosopher, 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:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/home.html. 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);
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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: http://www.gwu.edu/~ntegrity/code.html
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 Marvin Center, Suite 242, to
establish eligibility and to coordinate reasonable accommodations. For additional information
please refer to: http://gwired.gwu.edu/dss/
University Counseling Center (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
http://gwired.gwu.edu/counsel/CounselingServices/AcademicSupportServices
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
1/14
Constitutionalism, the Counter-Majoritarian Difficulty, and Judicial Review
Geoffrey 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: read Philip Bobbitt, “Constitutional Interpretation” and the
Constitution of the United States
1/21
Jeremy Waldron, “The Core of the Case Against Judicial Review”
Optional: W. J. Waluchow, A Common Law Theory of Judicial Review
1/28
Originalism
Mitchell N. Berman, “Originalism is Bunk,” pp. 3-27
Shelby County v. Holder, 570 U. S. ____ (2013) (Voting Rights Act)
PHIL 6242.10 Syllabus S14
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2/4
Antonin Scalia, A Matter of Interpretation, pp. 3-47
Roper v. Simmons, 543 U.S. 551 (2005) (juvenile death penalty)
Optional: Gary Lawson and Guy Seidman, “Originalism as a Legal Enterprise”
2/11
Berman, “Originalism is Bunk,” pp. 37-96
U.S. v. Windsor, 570 U.S. ___ (2013) (Defense of Marriage Act)
2/14
Post 300-word paper proposal and initial bibliography (≥ 10 sources) on Bb by
11:59pm. Select the Proposal link in the Files section. Upload your proposal and
bibliography as one file (.doc, .docx, .rtf).
2/18
Moralism
Ronald 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”
2/25
Libertarianism
Richard A. Epstein, Takings
Kelo v. City of New London, 125 S. Ct. 2655 (2005) (eminent domain)
3/4
Dualist Democracy
Bruce 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
3/18
Living Originalism
Jack M. Balkin, Living Originalism, chs. 2-3, 5
3/21
Post first draft of term paper for instructor by 11:59pm
3/25
Balkin, Living Originalism, chs. 8, 11-13
3/28
Workshop I participants post latest draft for classmates by 11:59pm
4/1
Term Paper Workshop I
4/4
Workshop II participants post latest draft for classmates by 11:59pm
4/8
Term Paper Workshop II
4/11
Workshop III participants post latest draft for classmates by 11:59pm
4/15
Term Paper Workshop III
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4/16
Burns Law Library closes to non-law students
4/18
Workshop IV participants post latest draft for classmates by 11:59pm
4/22
Term Paper Workshop IV
5/3
Burns Law Library reopens to non-law students
5/5
Post 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 voicemail at my office (202-994-6911) no later than May 2. I don’t accept inperson 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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