Studies in Law and the Judicial System-1
Course no. 377: Political Science; Public Administration; American Studies

Mondays and Wednesdays, 9 a.m. - 12 noon, Room 706
Summer 1988, First Day Term (May 23-June 30), Roosevelt University
Paul Bullen


This course covers in broad outlines the history of the Supreme Court of the United States, with special attention give to judicial review—the power of the courts to strike down legislative or executive acts it believes to be inconsistent with the constitution. We will discuss some of the issues that were raised in the recent Bork nomination hearings, such as whether constitutional interpretation should be based on original intent, whether constitutional meaning evolves, and how judicial review can be reconciled with a commitment to democracy: Why should nine unelected judges with life tenure be allowed to invalidate statutes enacted by popularly elected representatives?

Required Books

  • Currie, David P. The Constitution of the United States: A Primer for the People. Chicago: University of Chicago Press, 1988.
  • McCloskey, Robert. The American Supreme Court. Chicago: University of Chicago Press, 1960.
  • Wolfe, Christopher. The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law. New York: Basic Books, 1986.

Grades
Grades will be based on three short papers (about 4 pages each). No research is expected beyond the readings assigned above and below. There will be no midterm or final. The first paper, to be a summary and analysis of the McCloskey and Currie books, is due on Monday, June 6 at the beginning of class. The second paper, a summary and analysis of the Wolfe book, is due on Monday, June 20 at the beginning of class. The third and last paper, an analysis of most of the readings of the fifth and sixth weeks, is due at 9 a.m. on Wednesday, June 29. Please be sure to make a copy of each paper before handing it in. With the last paper please include a self-addressed, stamped envelope, so I can return your paper and grade directly by mail.

Office Hours
Office: Room 751. I will be available after each class and by appointment if those times are not convenient.

COURSE OUTLINE

Week one: The Constitution and the Origins and Problems of American Judicial Review
Monday, May 23:
Introduction
Wednesday, May 25:
Currie, The Constitution of the United States, pages 95-116, 1-94.

Week two: The First Century of the Supreme Court
Monday, May 30:
Memorial day holiday– no class.
Wednesday, June 1:
McCloskey, The American Supreme Court, pages v - 136 (to the end of chap. 5, to 1900)

Week three: The Supreme Court in the 20th Century
Monday, June 6:
McCloskey, The American Supreme Court, pages 137 - 252 (to the end of the book, to 1960)
first paper is due at the beginning of class
Wednesday, June 8:
Wolfe, The Rise of Judicial Review, pages i - 72 (to the end of chap. 2)
Marbury v. Madison 5 U.S. 1 Cranch 137 (1803).

Week four: The First Century of Judicial Review
Monday, June 13:
Wolfe, The Rise of Judicial Review, pages 72 - 202 (to the end of chap. 8)
Wednesday, June 15:
Wolfe, The Rise of Judicial Review, pages 203 - 291 (to the end of chap. 12)

Week five: Judicial Review in the 20th Century
Monday, June 20:
Wolfe, The Rise of Judicial Review, pages 292 - 356 (to the end the book)
second paper is due at the beginning of class
Wednesday, June 22:
Bork, Robert H. "Judicial Review and Democracy." Society. 24 (Nov/Dec. 1986): 5-8.
Dworkin, Ronald. "From Bork to Kennedy." New York Review of Books. December 17, 1987 [Vol. 34, no. 20], pp. 36-42.
Hamilton, Alexander, "Federalist 78." Pp. 464-72 in Hamilton, Alexander; Madison, James; and Jay, John. The Federalist Papers. New York: New American Library, 1961.

Week six: The Continuing Controversy about "Judicial Activism," the Bork nomination etc.
Monday, June 27:
Brennan, William J. "The Constitution of the United States: Contemporary Ratification." South Texas Law Review. 27 (Fall 1986): 433-446.
--Bork, Robert H. "Commentary: The Impossibility of Finding Welfare Rights in the Constitution." Washington University Law Quarterly. 1979 (Summer 1979): 695- 701.
–––––––. "The Constitution, Original Intent, and Economic Rights," San Diego Law Review. 23 (1986): 823ff.
Posner, Richard A. "What Am I? A Potted Plant? The Case against Strict Constructionism." New Republic. September 28, 1987, pp. 23-25.
Wednesday, June 29:
third paper is due at 9 a.m, with a self-addressed, stamped envelope

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