JJUA55291U Cancelled Issues in Constitutional Interpretation: Law, Courts, and Moral Wrong in US Supreme Court Decisions
This course explores the history of American constitutional law through the so-called “anti-canon” of US Supreme Court cases. The “anti-canon” consists of important and influential cases that scholars now consider not only to be wrongly decided but morally repugnant. Yet, they have not been overruled and, as binding precedent, still exercise influence over today’s Supreme Court decisions. The “anti-canon” decisions upheld race discrimination, condoned forced sterilization, and maintained dangerous, degrading work conditions for laborers, among other things. Yet, they still have their defenders.
An examination of such cases reveals much about the overall history
of the United States, the history and character of the US Supreme
Court, and the nature of jurisprudence generally. It also says much
about the ostensible ‘gap’ between law and morality through which
lawyers and judges must daily navigate. Students will be expected
to read these cases in their historical context and to become
familiar with the modes of legal argumentation employed by the
lawyers and justices involved. We shall explore the influence these
cases still have today and learn about the various modes of
constitutional interpretation (still employed today) that made them
possible. The course will also provide insight into the nature of
common law reasoning and thereby an illuminating contrast to Danish
and Continental jurisprudence.
Requirements for the Course:
Each student will be required to participate in a group
presentation during one week of the course. The purpose of the
presentation is to explain the issues raised in that week’s case
(s) to the entire class. Responsibilities for presenting the case
may be distributed among different members of the group. For
example, one person may present the facts of the case and another a
particular legal issue in dispute.
Students are also required to keep a journal on the readings for
the class. After each class, students should write approximately 1
page (double-spaced) on their personal impressions of and thoughts
on that day’s class discussion. These are purely personal
impressions - there is no right or wrong way to do it as long as
you actually express what you are thinking. The journals must be
handed in after the last day of class.
Knowledge:
The course will provide insight into the nature of common law
reasoning and thereby an illuminating contrast to Danish and
Continental jurisprudence.
Skils:
Students will gain knowledge of the history and character of the US
Supreme Court, and the nature of jurisprudence generally. They will
be able to read American cases in their historical context and to
become familiar with the modes of legal argumentation employed by
the lawyers and justices involved.
Competences:
Students will be able to recognize and explain the various modes of
constitutional interpretation (still employed today) that made the
American cases possible.
Week 1: General introduction to the American legal system and
canon(s) of constitutional interpretation
Marbury v. Madison (1803) (establishing judicial review)
McCullough v. Maryland (1819) (on the scope of federal legislative
power)
Supplemental reading: Akhil Amar, America’s Constitution, “New
Rules for a New World” (2006)
Week 2: Slavery and citizenship
Dred Scott v. Sandford (1857) (slaves are property subject to due
process requirements, blacks cannot be citizens)
Supplemental reading: Mark Graber, Dred Scott and the Problem of
Constitutional Evil (2012); Daniel Farber, “A Fatal Loss of
Balance: Dred Scott Revisited,” Paul Finkelman, “Coming to Terms
with Dred Scott: A Response to Daniel A. Farber,” 39 Pepperdine Law
Review (2013)
Week 3: Who lost the Civil War?
Plessy v. Ferguson (1896) (establishing the ‘separate but equal’
doctrine justifying racial discrimination)
Supplemental reading: Charles Lofgren, The Plessy Case: A
Legal-Historical Interpretation (1987); Akhil Amar, “Plessy v.
Ferguson and the Anti-Canon,” Barry P. McDonald, “Reluctant Apology
for Plessy: A Response to Akhil Amar,” 39 Pepperdine Law Review
(2013)
Week 4: Substantive due process: Freedom, labor and capital
Lochner v. New York (1905) (consolidating the doctrine of
‘substantive due process’ through which ‘judges may act as
legislators’ by interpreting ‘freedom of contract’ as a
‘fundamental right’)
Supplemental reading: David Bernstein, Rehabilitating Lochner:
Defending Individual Rights against Progressive Reform (2011); John
Hart Ely, “Discovering Fundamental Values,” Democracy and Distrust:
A Theory of Judicial Review (1980)
Week 5: Defending eugenics
Buck v. Bell (1925) (upholding state sterilization laws)
Supplemental reading: Adam Cohen, Imbeciles: The Supreme Court,
American Eugenics, and the Sterilization of Carrie Buck (2016);
Victoria Nourse, Buck v. Bell: A Constitutional Tragedy from a Lost
World,” Edward J. Larson, “Putting Buck v. Bell in Scientific and
Historical Context: A Response to Victoria Nourse,” 39 Pepperdine
Law Review (2013)
Week 6: Civil liberties in times of war
Korematsu v. United States (1944) (upholding the legality of
Japanese internment camps)
Supplemental reading: Lorraine Bannai, Enduring Conviction: Fred
Korematsu and His Quest for Justice (2015); Erwin Chemerinsky,
“Korematsu v. United States: A Tragedy Hopefully Never to Be
Repeated,” Robert J. Pushaw Jr., “Explaining Korematsu: A Response
to Dean Chemerinsky,” 39 Pepperdine Law Review (2013)
Week 7: Reverberations
Excerpts from Skinner v. Oklahoma (1942), Brown v. Bd. of Education
(1954), Cooper v. Aaron (1958), Griswold v. Connecticut (1965),
Loving v. Virginia (1967), Lawrence v. Texas (2001), and Trump v.
Hawaii (2018)
- Category
- Hours
- Preparation
- 178,25
- Seminar
- 28
- Total
- 206,25
- Students enrolled at Faculty of Law: Self Service at KUnet
- Students enrolled at other UCPH faculties or Danish universities, who holds a pre-approval from their Study Board: Credit student application form
- All other students or professionals: Single subject application form (tuition fee apply)
- Credit
- 7,5 ECTS
- Type of assessment
- Oral examination, 20 minOral exam based on a synopsis, 20 minutes
- Exam registration requirements
In order to attend the oral examination, it is a prerequisite to hand in the synopsis before the specified deadline. The deadline is agreed upon with the course lecturer.
- Marking scale
- 7-point grading scale
- Censorship form
- External censorship
- Exam period
The course is cancelled in the autumn semester 2021
- Re-exam
The course is cancelled in the autumn semester 2021
Course information
- Language
- English
- Course code
- JJUA55291U
- Credit
- 7,5 ECTS
- Level
- Full Degree MasterFull Degree Master choice
- Duration
- 1 semester
- Placement
- Autumn
- Schedule
- Please see timetable for teaching hours
- Course is also available as continuing and professional education
- Study board
- Law
Contracting department
- Law
Contracting faculty
- Faculty of Law
Course Coordinators
- Helle Porsdam (13-4c697070693254737677686571446e7976326f7932686f)