U.S. CONSTITUTIONAL LAW

Part One: Class, Race, and Gender

Political Science 401/501, Winter 2004

Political Scientists study the Supreme Court and constitutional law from a variety of perspectives and with a surprisingly diverse body of questions. Many of us study the court as part of a broader interest in topics such as social movements, civil rights, civil liberties, gender equity, freedom of speech and belief, economic policy, or the organization of American government. Others study the court as a unique institution in American government and explore its internal workings as well as its interactions with the elected branches of the federal government, the fifty different state governments, and thousands of municipal governments. Still others take a more philosophical approach and explore the meanings and implications of the court's jurisprudence on fundamental rights and liberties.

All of us, I think, have a particular fascination with how the court and its justices serve as a crucible for two seemingly discordant approaches to organizing public life and decision making: politics and law. Some see "politics" (favoritism for the rich and powerful, slavish pursuit of power and victory, and slick Armani suits) polluting "the law" (blindness to wealth and status, reasoned pursuit of justice, discreet black robes). Others, contrastingly, see "the law" (slick lawyers, Ivy league accents, and pretentious predilection for Latin phrases) as, inter alia, perverting "democratic politics" (the will of the people, regular elections, and plainspoken common sense). Whatever our personal bent, we seem to be repeatedly drawn to this apparent dichotomy between law and politics.

But, oddly, this fascination with the struggle between law and politics exists even though most of us in the field deeply question the alleged distinction between the two--to many of us law is just politics in a somewhat different venue. Laws are, after all, written by politicians. And judges, who normally come from politically active backgrounds, are appointed by politicians and are often savvy players in the political world. Further anyone knows that a justice's personal politics are crucial in shaping their view of the constitution's "mandate" (just contrast Thurgood Marshall and Clarence Thomas--each an unapologetic advocate for a firm ideological position within American politics). Finally, any legal decision must be implemented (or ignored) in a political and social context that is marked by the fundamental cleavages of race, class, gender, and power.

Law, then, is inescapably political.

So, to me, the question becomes not "what is the relationship between law and politics," but, rather, "how are the unique politics of American law shaped and how do the politics of law shape America?" To answer this admittedly sweeping question, we should pay particularly close attention to:

· the (often implicit) political philosophy, premises, language and reasoning of court opinions

· the personal politics of the justices and other participants

· the broader political conflicts, issues, and transformations behind major cases

· the background or structure of American economic, social, and political history

Throughout the course I hope that you can bear one big question in mind:
Does the law in America serve as a force for justice, democracy, and liberation or as the bulwark of privilege, oligarchy, and oppression?