Neil S. Hecht

3 credits

This course will examine some classic issues of jurisprudence as they arise in contemporary controversies over law and morality. Topics will include the following: (1) Originalisms versus moral readings. Does constitutional interpretation involve determining the original meaning of the Constitution as a matter of historical fact (originalisms) versus making normative judgments about the best understanding of our constitutional commitments (moral readings)? We will examine these competing theories through assessing two competing approaches to the Due Process Clause: that of Washington v. Glucksberg and Dobbs v. Jackson Women’s Health Organization and that of Planned Parenthood v. Casey and Obergefell v. Hodges. Does protection of the right to abortion or the right of same-sex couples to marry necessarily entail a moral reading of the Constitution? How does the Supreme Court actually use history in denying rights in Glucksberg and Dobbs? In service of originalism as commonly understood or of conservative moralism and traditionalism? (2) The legal enforcement of morals. In Lawrence v. Texas, which recognized a right of gays and lesbians to intimate association, Justice Scalia protested in dissent that the case “effectively decrees the end of all morals legislation.” Is Scalia right that there is really no distinction between same-sex intimate association and, to quote Scalia’s list, “fornication, bigamy, adultery, adult incest, bestiality, and obscenity”? What are the proper limits on traditional “morals legislation”? Does Obergefell put us on a slippery slope from same-sex marriage to plural marriage (including both polygamy and polyamory)? (3) Grounds for justifying rights. What are the best grounds for justifying rights in circumstances of moral disagreement? For example, should we justify a right of same-sex couples to marry on the ground that government should respect people’s freedom to choose whom to marry? Or instead on the ground that protecting such a right promotes moral goods (the same moral goods that opposite-sex marriage furthers): commitment to another human being, along with “the ideals of mutuality, companionship, intimacy, fidelity, and family” (quoting Goodridge v. Department of Public Health, the Massachusetts decision protecting a right of same-sex couples to marry). Furthermore, does the Due Process Clause or the Equal Protection Clause provide the better ground for such a right (as well as a right of pregnant persons to decide whether to terminate their pregnancies)? What are the criteria for deciding between these grounds? Do liberty and equality oppose or reinforce one another? (4) Government’s role in promoting civic virtues and public values: conflicts between liberty and equality. To what extent may government inculcate civic virtues and promote public values? We will focus on (a) battles over civic education (including teaching about race and gender) and (b) conflicts between religious liberty and freedom of speech and the use of antidiscrimination and marriage equality laws to secure the status of equal citizenship for all. For example, must laws recognizing same-sex marriage or protecting against discrimination on the basis of sexual orientation or gender identity grant exemptions to business owners who disapprove of such rights on religious grounds? (5) Originalism and the right to bear arms. The Supreme Court has based its major decisions protecting an individual right to bear arms on originalism. Do Heller and Bruen vindicate originalism as yielding objective answers of historical fact about constitutional meaning or, to the contrary, do they suggest that originalism is a site of contestation between competing understandings of our constitutional commitments? How does the Court actually use history in these cases? UPPER-CLASS WRITING REQUIREMENT: This class may be used to satisfy the requirement. ** A student who fails to attend the initial meeting of a seminar, or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.