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.
The course will provide insight into the nature of common law reasoning and thereby an illuminating contrast to Danish and Continental jurisprudence.
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.
Students will be able to recognize and explain the various modes of constitutional interpretation (still employed today) that made the American cases possible.
Case work and student presentations.
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)
Classes and exams are in English. Knowledge of and experience of English at this level is therefore important.
- 7,5 ECTS
- Type of assessment
Oral examination, 20 minOral exam based on a synopsis, 20 minutes
- Marking scale
- 7-point grading scale
- Censorship form
- External censorship
Single subject courses (day)
- Course number
- 7,5 ECTS
- Programme level
- Full Degree Master
Full Degree Master choice
- Students enrolled at Faculty of Law or holding a pre-approval: No tuition fee
- Professionals: Please visit our website
Please see timetable for teaching hours
- Faculty of Law
- Helle Porsdam (13-4d6a71716a3355747778696672456f7a7733707a336970)
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