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Fall 2022
LAW217  A  CONSTITUTIONAL LAW II

Course Description
This course covers the history and scope of individual rights under the U.S. constitution. It begins by briefly exploring early models of constitutional decision-making using cases from the slavocratic regime as a context. We then trace the development of equal protection, due process and first amendment guarantees through to their contemporary formulations. In addition to our exploration of substantive law the courses is deeply concerned with how courts make decisions. We will also explore competing models of constitutional interpretation.

Course Schedule
Dates Day Time Room
08-22-2022 - 11-30-2022   TR  3:30 PM-5:20 PM E352

Course Frequency
This course is usually offered every semester

Course Information

Credits: 4
Pass/Fail Option: Yes
Prerequisite:
Method of Evaluation: Final exam
Graduation Requirements Fulfilled By Course:
General
Special Attributes:
Bar Course
Course Delivery:
Residential
Special Restrictions:
Law Track(s):
Government & Regulation - Basic
Bar Subject(s):
FLORIDA
MBE
Concentration(s):
Immigration, Asylum, and Citizenship Law Area of Focus (Area of Focus)   More information
Social Justice & Public Interest (Area of Focus)   More information
Social Justice & Public Interest (Concentration)   More information
Course Book(s):
Textbook Required:
Yes  
  • Textbook Name: Constitutional Law: 2022 Supplement
    Textbook Type: Paperback
    Requirement: Required
    Author:
    Publisher: Aspen
    Edition: 2022 Supplement
    ISBN: 978 15438 58853
      
  • Textbook Name: Constitutional Law
    Textbook Type: Hardcover
    Requirement: Required
    Author: Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein, Mark V. Tushnet, and Pamela S. Karlan
    Publisher: Aspen Publishing
    Edition: Eighth Edition
    ISBN: 9781454897033
      
  
First Class Assignment(s):
  • Assignment: To: Students in Con Law II From: Professor Donald Jones Date: August 8, 2022 Re: Assignment for first class Instructions: For your first assignment, pick one of the hypos listed below and write a reflection paper. A reflection paper must explain what the issue is, what the competing principles or policies are, and how you think the case or issue should be resolved. The format could be that of a court opinion, in which you take the role of a judge, or, if you choose, a lawyer writing an editorial for a newspaper, or a scholar writing an abstract on the topic involved. Reflection papers may be from 300 to 1,000 words. The reflection papers must be typed and double-spaced. Standard citation practices apply. Because the essays are very short, you need not restate the facts nor focus on procedural issues. Students may only write on one of these hypos. The textbook we will be using this semester will be Stone, Seidman, Sunstein and Tushnet, and Karlen, Constitutional Law (8th Edition 2018). All references to a “text” are to this book. Due date: The assignment is due the first day of class. (Bring a hard copy with you.) Hypo 1 The original Constitution contains several clauses which recognized the legitimacy of slavery or protected the “property rights” of slave masters to their slaves. Question: Would you sign the original Constitution? In answering this question, discuss the dichotomy of law v. morality, or natural law v. positive law, or competing theories of interpretation (or a combination of all three). Required Reading: Xxxix - liii in the text State v. Post, pgs. 465-474 in text. Prigg v. Pennsylvania, 41 U.S. 539 (1842) Suggested Readings: D. Robinson, SLAVERY AND THE STRUCTURE OF AMERICAN POLITICS, 1765-1820 (1971) Thurgood Marshall, Commentary: Reflections on the Bicentennial of the United States Constitution, 101 Harv. Law Review 1 (1987) Stanford Levinson, The Constitution in Perspective-Pledging Faith in the Civil Religion; Or, Would You Sign the Constitution? 29, William and Mary L. Rev. 113 (1987) Hypo 2 In 2019 the state of Mississippi enacts a law which generally prohibits abortions after 15 weeks of pregnancy (Mississippi Gestation Age Act Miss Code Ann. 41-41-191). Such abortions are often called pre-viability abortions. The term viability refers to the fetus’ ability to survive outside of the womb, either with or without life-support. Under current technology the fetus does not become viable until 24 weeks into the pregnancy. On June 24, 2022 the Supreme Court upheld Mississippi’s 15 week abortion ban. “In a 5-4 decision the Supreme Court upheld the Mississippi “abortion ban” holding that “The U.S. constitution does not confer a right to an abortion.” 19-1392 Dobbs v. Jackson Women’s Health Organization (06/24/2022) (supremecourt.gov) Question: Was the Supreme Court right or wrong in overturning Roe v. Wade?. In writing your essay consider one or both of the following questions: 1. In classical constitutional jurisprudence there was a notion of private sphere of rights in which the rights of the individual were absolute. There was also a public sphere in which rights were always subject to interest balancing. Roe v. Wade recognized a zone of autonomy up to a certain point in time of a woman’s pregnancy in which government regulation had no place. Is there anything left of that framework? 2. In THE MORALITY OF CONSENT (1975) Bickel argues that the Constitution is not freestanding but rests on a “social contract”. Are there some rights so basic to this “social contract” that without them one cannot say we have a true democracy? Is the right of women to make fundamental choices about whether to carry a pregnancy to term one of those rights? Required Reading: Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705, 35 L. ed. 2nd 147 (1973);p. 836 -841 in the text. Planned Parenthood v. Casey , 505 U.S. 803, 112 S. Ct. 2791, 120 L. ed. 2nd 6774 (1992); pgs 848 to 866 in the text. Preserving the Core of Roe: Reflections on Planned Parenthood v. Casey, 18 Yale J. L. Feminism 317 (2006) The Roe’D to Confusion: Planned Parenthood v. Casey, 30 Hous. L. Rev. 1457 (1993) Dobbs and the Holdings of Roe and Casey, 20 Geo. J.L. & Pub. Pol'y 283 Hypo 3 It is summer 2020. Many inner-city residents of Magic City (in the state of Erewhon) march in protest of the shooting of young black man, Rayvon Brown, by Officer John Strieff. At the protest rally, one rapper New Dog takes the stage and raps , “Twenty paramedics could not save your life, It’s on your head you started this strife.” and “The angers too deep, we’ll hit you in your sleep.” New Dog never mentions Strieff’s name nor references the name of Rayvon Brown. One day later what authorities term a riot ensues and someone throws a Molotov cocktail at the police station. It burns to the ground. New dog is charged under the following statute: Erewhon State Statute 870.01 A person commits inciting a riot if he or she willfully incites another person to participate in a riot, resulting in a riot or imminent danger of a riot. A person who commits inciting a riot commits a felony of the third degree. Answer one of two questions: Question 1. Was New dog’s expression protected speech? In the circumstances did New Dog’s expression constitute a clear and present danger of imminent bodily harm ? Required Reading: Schenck v. United States, 249 U.S. 47; pgs 1025-1029 Dennis v. United States, 341 U.S. 494; pgs 1045-1052 Brandenburg v. Ohio, 395 U.S. 444 (1969), 1052-1062 Suggested Reading: The Emergence of Modern First Amendment Doctrine, 50 U. Chi. L. Rev. 1207(1983) Incitement in an Era of Populism, 5 U. Pa. J. L. & Pub. Aff. 56 (2020) Question 2. What is a “true threat.” Was New Dog’s speech a “true threat?” Required Reading: Watts v. United States, 394 U.S. 705 (1969) NAACP v. Claiborne Hardware, 102 S.Ct. 3409 (1982) Virginia v. Black, 538 U.S. 343 (2003) Suggested Reading: Rap Music and the True Threats Quagmire: When Does One Man's Lyric Become Another's Crime?, 38 Colum. J.L. & Arts 1(2014)

    Material:
    The textbook we will be using this semester will be Stone, Seidman, Sunstein and Tushnet, and Karlen, Constitutional Law (8th Edition 2018). All references to a “text” are to this book.
      

 
Professor(s)

JONES, DONALD


Biography
Contact Information:
Email: djones@law.miami.edu
Phone: (305)284-6314
Office: G475