Syllabus
Law 342D.002
Topics in Comparative Law:
Comparative Constitutional Law
(2011-2012)
Winter Term
Friday 9:30 to 12:30
Shigenori Matsui
Professor of Law, University of British Columbia, Faculty of Law
Phone 604-822-5592
1822 East Mall, Vancouver, BC V6T 1Z1
e-mail matsui@law.ubc.ca
The purpose of the seminar
This seminar is a comparative study of the Canadian Constitutional Law
and American Constitutional Law. This seminar will examine the different
historical background, government structure and protection of individual rights
between Canada and the United States.
This seminar will be suited for students who want to learn about the
American Constitutional Law but it will give you useful resources for your
constitutional practice in Canada. This seminar will be also useful for exchange
students who want to know basic principles of both the Canadian Constitutional
Law and the American Constitutional Law.
The requirement to take this seminar
There is no requirement to take this course. It would be wonderful if you
have basic understanding of the Canadian Constitutional Law, but you can learn
the basic principles of the Canadian Constitutional Law compared with the
American Constitutional Law by taking this seminar.
If you want to know the basic differences between the Canadian legal
system and the American legal system in general, please take the Topics in
Comparative Law: Comparative Law course. If you want to know more about
the differences in protection of freedom of expression, take Topics in Public
Law: Freedom of Expression course.
Textbook
Reading Material sent on-line (this reading material is a collection of
edited cases of the United States Supreme Court)
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For those who want to keep in touch with Canadian cases, the following books
are widely used as textbooks:
The Constitutional Law Group, Canadian Constitutional Law (4th ed. Edmond
Montgomery Publications Limited 2010)
Peter W. Hogg, Constitutional Law of Canada (Student edition 2012 Thomson
2012)
The following casebooks are widely used in the United States:
Kathleen M. Sullivan & Gerald Gunther, Constitutional Law (Foundation Press
17th 2010)
Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet, and
Pamela S. Karlan, Constitutional Law (6th ed. Aspen 2009)
Evaluation
Class participation 30% and final assignment 70%
The regular attendance in the class is mandatory. I will welcome active
student participation in the class discussion.
With respect to final assignment, you can pick up any topic you may find
interesting and compare the Canadian Constitutional Law with the American
Constitutional Law. You can choose the topic covered in the seminar or you can
choose other topics you may find interesting so long as the topic is concerned
with constitutional issue. The guideline for a paper is about 20 pages, double
spaced. The deadline for submission is 4 pm. of the final day of the examination
period. I will be happy to give you any advice on the possible topic and the
possible resources to compare.
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Outline of the seminar
1 introduction
Brief introduction to the purpose of the seminar, outline of the seminar, and
evaluation method.
2 history
This class will examine the history leading to the enactment of the United States
Constitution, the enactment process and ratification process, the addition of the
Bill of Rights, and subsequent development of the American Constitutional Law,
especially focusing on the Civil War, Reconstruction, and New Deal.
3 judicial review
This class will examine the foundation of the power of judicial review and all the
debates about how judiciary should exercise this power
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Cooper v. Aaron , 358 U.S. 1 (1958)
Lochner v. New York, 198 U.S. 45 (1905)
4 federalism
This class will examine the different federalism system between Canada and the
United States. In the United States, the federal government has only limited
power and the residual powers were reserved to states and the people.
McCulloch v. Maryland, 17 U.S. 316 (1819)
5 congress
This class will examine the power of the Congress to regulate intrastate conducts.
Compared with Canada, the United States Congress is granted far broader
regulatory power.
United States v. Darby Lumber Co., 312 U.S. 100 (1941)
United States v. Lopez, 514 U.S. 549 (1995)
6 state power
This class will examine to what extent the state can regulate interstate
commerce. There is a significant limitation on the power of the states.
Philadelphia v. New Jersey, 437 U.S. 617 (1978)
Dean Milk Co. v. Madison, 340 U.S. 349 (1951)
New York v. United States, 505 U.S. 144 (1992)
7 president and the executive power
This class will examine the inherent power of the President and the meaning of
the separation of powers principle.
Youngstown Sheet & Tube Co. v. Sawyer [The Steel Seizure Case), 343 U.S. 579
(1952)
INS v. Chadha, 462 U.S. 919 (1983)
Clinton v. New York, 524 U.S. 417 (1998)
Bowsher v. Syndar, 478 U.S. 714 (1986)
8 courts and the judicial power
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This class will examine the basic requirements for the exercise of judicial power.
The federal courts are not allowed to give advisory opinion without case or
controversy but the standing requirement is quite loose.
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000)
9 protection of individual rights: incorporation
The Bill of Rights in the federal Constitution is applicable only to the federal
government. Yet, after the Civil War amendment, the Fourteenth Amendment
came to be used to apply the individual right provisions of the federal
Constitution to the states.
Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833)
Duncan v. Louisiana, 391 U.S. 145 (1968)
10 protection of individual rights: state action
The individual right provisions are essentially applicable to conducts of the
federal government and states. However, the United States Supreme Court has
broadened the scope of the state action to allow application of the equal right
provision to private conducts.
Shelley v. Kraemer, 334 U.S. 1 (1948)
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)
11 freedom of religion: free exercise of religion
What is the free exercise of religion? In what circumstances, the government is
precluded from interfering with the private religious conduct?
Reynolds v. United States, 98 U.S. 145 (1878)
Sherbert v. Verner, 374 U.S. 398 (1963)
Employment Division, Department of Human Resources v. Smith, 494 U.S. 872
(1990)
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)
12 freedom of religion: establishment
The First Amendment has an establishment clause prohibiting establishment of
religion. To what extent should the government or states be precluded from
doing religious conducts or allowing religious conducts?
Everson v. Board of Education, 330 U.S. 1 (1947)
Lee v. Weisman, 505 U.S. 577 (1992)
Lynch v. Donnelly, 465 U.S. 668 (1984)
Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)
Zelman v. Simmons-Harris, 536 U.S. 639 (2002)
13 freedom of expression: incitement
The protection of freedom of expression is a hallmark of the American
constitutionalism. What kind of constitutional protection should be granted to
advocacy of illegal action, such as advocacy of revolution or rebellion?
Schenck v. United States, 249 U.S. 47 (1919)
Abrams v. United States, 250 U.S. 616 (1919)
Gitlow v. New York, 268 U.S. 652 (1925)
Whitney v. California, 274 U.S. 357 (1927)
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Dennis v. United States, 341 U.S. 494 (1951)
Brandenburg v. Ohio, 395 U.S. 444 (1969)
14 freedom of expression: offensive speech
There has been a serious controversy over the power of the government to
prohibit offensive speech. Should the government be allowed to ban offensive
speech?
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
Cohen v. California, 403 U.S. 15 (1971)
Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978)
United States v. Stevens, 559 U.S. -- (2010)
15 freedom of expression: defamation
The United States Supreme Court has established the freedom of expression
doctrine which prohibits the government or states to impose civil liability to
defamatory speech against public officials unless the plaintiffs can prove that the
defendants had an actual malice. What is the reason for this doctrine?
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Gertz v. Robert Welch, Inc, 418 U.S. 323 (1974)
16 freedom of expression: hate speech
One of the striking differences between Canada and the United States is the
attitude toward hate speech. In the United States, the hate speech regulation is
seriously restricted. Why?
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
Virginia v. Black, 538 U.S. 343 (2003)
17 freedom of expression: obscenity
Obscene speech is held to be outside of the protection of the First Amendment
but the Supreme Court has considerably restricted the scope of the obscene
speech that can be banned. What is the definition of obscenity and why the
government is allowed to prohibit it?
Miller v. California, 413 U.S. 15 (1973)
Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)
American Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985)
18 freedom of expression: child pornography
The United States Supreme Court has sustained the ban on child pornography
but it placed a limit on the power of the government to prohibit virtual child
pornography. To what extent the government is allowed to regulate child
pornography?
New York v. Ferber, 458 U.S. 747 (1982)
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
United States v. Williams, 553 U.S. 285 (2008)
19 equal protection: racial discrimination
Racial discrimination has been the most troubling tradition in the United States.
What is the basic constitutional framework for racial discrimination? In order to
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wipe out the past discrimination, some kind of affirmative action is required.
What is the limit of such affirmative action?
Brown v. Board of Education, 347 U.S. 483 (1954)
Loving v. Virginia, 388 U.S. 1 (1967)
Grutter v. Bollinger, 539 U.S. 306 (2003)
Gratz v. Bollinger, 539 U.S. 244 (2003)
20 equality: sexual discrimination
Should the sexual discrimination be treated in the same way as the racial
discrimination? Or should the courts pay deference to the judgment of the
legislature? To what extent should the government be allowed to treat men and
women differently?
Craig v Boren, 429 U.S. 190 (1976)
United States v. Virginia, 518 U.S. 515 (1996)
21 equality: sexual orientation
This class will examine the treatment of homosexual people by the United States
Supreme Court. In the United States, most of the states still do not allow samesex marriage. Why?
Romer v. Evans, 517 U.S. 620 (1996)
Lawrence v. Texas, 539 U.S. 558 (2003)
22 substantive due process: abortion
In the United States, the right to an abortion has been protected as privacy by the
Supreme Court. Yet, there has been a very strong objections to the jurisprudence
established by the Supreme Court and the stance toward abortion has
significantly changed. What is the issue? Why does this issue attract so much
public attention?
Griswold v. Connecticut, 381 U.S. 479 (1965)
Roe v. Wade, 410 U.S. 113 (1973)
Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
Gonzales v. Carhart, 550 U.S. 124 (2007)
23 substantive due process: right to die
The right to die has been a focus of debate in the United States. Is there a right to
remove life supporting equipment? Is there a right to seek assist in dying?
Cruzan v. Director, Missouri Department of Health,497 U.S. 261 (1990)
Washington v. Glucksberg, 521 U.S. 702 (1997)
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