Download Political Science 342.001 - Department of Political Science

Political Science 342.001
Civil Liberties
Spring, 2009
Maybank # 207
10:50-12:05 TR
Dr. D.S. Mann
26 Coming # 101
Office hours 130-230 F,
10:30-11:30 MWF and by
appointment
Office phone: 953-5703
e-mail: [email protected]
Course Description: “This course is largely a study of basic individual liberties found in the
American Constitution and interpreted by the U.S. Supreme Court. Typically, the rights and liberties
discussed include the first amendment (freedom of speech, press, and the religion clauses) and the 14th
amendment (equal protection of the laws--including race, gender, age, and privacy). Prerequisite-POLS 101.”
Texts and Materials:
D. O’Brien. Constitutional Law and Politics. Vol. 2. 7th Edition. Norton.
R. Polenberg. Fighting Faiths. Penguin.
You also may need the following Web Sites: http://Supct.law.Cornell.edu/supct/
http://www.loc.gov/law/guide/index.html
http://www.foundingfathers.info/
http://www.supremecourtus.gov/
Also see O'Brien, pp. 1593-4 for further research hints.
E-Reserve cases and readings are indicated on the detailed Course Outline and Assignment Schedule.
The password will be given in class.
Requirements:
1. Exams: There are two in-term exams scheduled for the course, each worth 15% toward the course
grade. Exams are essay, are announced one calendar week in advance, and are in-class exams. Study
sheets are provided at the announcement dates. Blue books are provided by the instructor; exams are
written in blue or black ink only. There will be no make-up exams without an advance written request
and written permission from the instructor prior to the exam dates.
2. Hypothetical: There is one hypothetical case exercise scheduled, worth 15% toward the course
grade. This is a take-home assignment. Further details are forthcoming.
3. Briefs: During the semester briefs are assigned as noted below. The brief format appears as the last
page of this syllabus. For the first four weeks of the term, the following briefs are due on each
successive Thursday (beginning January 15th): Regents v. Bakke, Gitlow v. N.Y., Employment
Division v. Smith, and Griswold v. Connecticut. With that exception, other briefs during the term are
due one class period after the assignment is announced (see the detailed Course Outline and
Assignment Schedule), at the beginning of the class period in the class room. No late briefs will be
accepted for full credit. The instructor reserves the power to collect or to waive collecting all but the
Political Science 342.001--Civil Liberties
Spring 2009, Dr. Mann, p. 2
four brief assignments mentioned above. Grading on collected briefs is pass/fail; students who
resubmit fully corrected briefs may obtain full credit if the briefs escape to the instructor at the
beginning of the class period after they are returned to the students. Cumulative completion of this
assignment counts as 10% of the course grade.
4. Written Assignment: There will be one written assignment. Details are forthcoming. It will be
worth 15% of the course grade.
5. Final Exam: This is an in-class exam, worth 30% toward the course grade.
*For all assignments and exams, identify yourselves by student number (last five digits of your
College of Charleston student number, ex.: 00-000) only.
6. Attendance: Regular attendance is mandatory. Roll will be taken on random days and will
constitute a course grade tie-breaker.
7. Alternative Meeting Site: If for any reason we are locked out of our normal classroom or building,
we will rendezvous at the Randolph Hall fountain and meet there or elsewhere. This includes all due
dates.
8. Grading Policy: There is no class curve. Grading (other than briefs) will be based on straight
percentage, numerical assignment, based on the following:
A = 93+
A-=90-92.9
B+=87.5-89.9
B =83-87.4
B-=80-82.9
C+=77.5-79.9
C =73-77.4
C-=70-72.9
D+=67.5-69.9
D =63-67.4
D-=60-62.9
9. Do not call the David Mann who lives on the East of the Cooper. It isn't me. Contact me as above.
While we are on the subject of contacting professors, I do not have internet at home. Don’t expect
responses on weekends or overnight.
10. All hand-held electronic devices, cell phones, pagers, and alarms shall be turned off or vibrate
during all class periods. Those who violate this rule may be asked to leave and attendance for that date
will be deducted.
Political Science 342.001--Civil Liberties
Spring 2009, Dr. Mann, p. 3
Political Science 342.001--Civil Liberties
Basic Course Topic Outline
What follows is a Basic Course Topic Outline. Following that is the detailed Course Outline and
Assignment Schedule for the course.
I. Introduction: Why Are We In This Course?
II. Freedom of Expression
First Exam Here
III. Freedom of the Press
Written Assignment Here
IV. Freedom of and from Religion
Hypothetical Exercise Here
V. Privacy--Does it exist as a Constitutional liberty from interference by government?;
if so, what are the limits to the right of privacy, if any?
Second Exam Here
VI. And We Are Not Saved+: the 14th Amendment and Equal Protection
VII. Conclusion: Where would we be without the 14th Amendment?
Final Exam Here
_____
+Inspired by Derrick Bell, his book by that title, Basic Books (1987)
Political Science 342.001--Civil Liberties
Spring 2009 Dr. Mann, p. 4
Course Outline and Assignment Schedule
Introduction: Do the reading before class. Though formal briefing of cases is not required except
where noted, this course dialogue requires student participation, which requires that the reading be
finished on time. If this is too much to ask, drop the course.
How to Read This Outline: Cases excerpted in the text or from the United States Reports (of Supreme
Court cases) are printed in italics. Cases to be briefed are in boldface italics. Where indicated,
items are on e-reserve. Other cases must be found on line and are so indicated. Some cases may be
added at the last minute.
I. Introduction: Why Are We In This Course?
Regents of the University of California v. Bakke, pp. 1464-73
Grutter v. Bollinger, pp. 1505-13
II. Freedom of Expression
A. Theory, History, and Applications: Speech (and by implication, Press)
1. Theories of Expression
John Milton: "Aeropagitica"
John Stuart Mill: On Liberty excerpt
Thomas Emerson: "Toward a System of Freedom of Expression" excerpt
Herbert Marcuse: “Repressive Tolerance”
** all on e-reserve and required reading
O’Brien, pp. 408-19
2. "Clear and Present Danger"--what is (was) it?
O’Brien, pp. 419-27
Masses Publishing Co. v. Patten--244 F 535 (1917)—on line
Schenck v. U.S. pp. 427-8
Frohwerk v. U.S. 249 US 204 (1919)--on line
Debs v. U.S. 249 US 211 (1919)--on line
Polenberg: entire book
3. Diversion: Selective Incorporation of the Bill of Rights into the 14th Amendment
O’Brien, pp. 324-39
Barron v. Baltimore, pp. 339-41
Meese: Interpreting the Constitution—e-reserve
Brennan: The Constitution of the United States: Contemporary Ratification
e-reserve
O’Brien, pp. 447-52
4. "Bad Tendency"--what is it; was it?
Gitlow v. N.Y. pp. 428-33
5. "Clear and Probable Danger"--what is it; was it?
Dennis v. U.S. pp. 433-44
Brandenburg v. Ohio pp. 445-7
B. Speech plus what equals protection—or not
1. Is there a right to “differ” from the majority?
O’Brien, pp. 651-5—symbolic speech plus
West Virginia State Board of Education v. Barnette, pp. 655-64
Tinker v. Des Moines Independent Community School District, pp. 664-7
Morse v. Frederick, pp. 669-74
Texas v. Johnson, pp. 674-81
O’Brien, pp. 681-7—speech plus
O’Brien, pp. 688-93--association
NAACP v. Alabama, pp. 694-7
Roberts v. U.S. Jaycees, pp. 697-700
Boy Scouts of America v. Dale, pp. 700-08
Rumsfeld v. Forum for Academic and Institutional Rights 126 S.Ct. 327
(2006)—on line
2. Offensive Speech
O’Brien, pp. 453-60—obscenity, pornography, offensive speech
Roth v. U.S. and Alberts v. California, pp. 460-4
Stanley v. Georgia, pp. 464-6
Miller v. California, pp. 466-71
excerpt from The Brethren by Woodward and Armstrong—e-res
Paris Adult Theatre I v. Slaton, pp. 471-7
New York v. Ferber, pp. 477-80
City of Erie v. Pap’s A.M., pp. 481-7
Reno v. American Civil Liberties Union, pp. 487-95
Ashcroft v. Free Speech Coalition, pp. 495-501
O’Brien, pp. 501-07—fighting words and offensive speech
Cohen v. California pp. 507-11
FCC v. Pacifica Foundation pp. 511-16
Bethel School District #106 v. Fraser, pp. 516-20
R.A.V. v. City of St. Paul, Mn, pp. 520-9
Wisconsin v. Mitchell, pp. 529-31
Virginia v. Black, pp. 531-8
Rust v. Sullivan, pp. 538-43
O’Brien’s comparative perspective, pp. 543-7
C. Commercial Speech--Is Advertising "Protected Speech?"
O’Brien, pp. 573-81—commercial speech
Bigelow v. Virginia, pp. 581-5
44 Liquormart, Inc. v. Rhode Island, pp. 585-92
Lorillard Tobacco Co. v. Reilly, pp. 593-8
III. Freedom of the Press
A. Censorship and Prior Restraint
O’Brien, pp. 599-603—freedom of the press and no prior restraint
1. Print Media
Near v. Minnesota ex. Rel. Olson pp. 604-7
New York Times Co. v. U.S. pp. 607-15
O’Brien, pp. 615-18—indirect prior restraints
Branzburg v. Hayes pp. 618-23
2. Broadcast Media
Houchins v. KQED, Inc. pp. 623-6
O’Brien, pp. 627-32—regulating broadcast and cable
Red Lion Broadcasting v. FCC, pp. 632-4
[FCC v. Pacifica]
Ashcroft v. American Civil Liberties Union, pp. 635-40
United States v. American Library Association, pp. 641-4
B. Libel--the scope and limit of civil suits
O’Brien, pp. 547-54--libel
New York Times Co. v. Sullivan pp. 555-60
Gertz v. Welch pp. 560-7
Masson v. The New Yorker Magazine, pp. 567-9
Cox Broadcasting Corp. v. Cohn, pp. 569-72
C. Fair Trial/Free Press
O’Brien, pp. 644-8
Globe Newspaper Co. v. Superior Court, pp. 648-51
IV. Freedom of Religion
A. Establishment of Religion
1. Background and "Early" Cases
O’Brien, pp. 709-18
Madison: Memorial and Remonstrance Against Religious Assessments—e-reserve
Jefferson: Bill for Establishing Religious Freedom—e-reserve
<Pierce v. Society of Sisters 268 US 510 (1925)>
<Cochran v. Board of Education 281 US 370 (1930)>
<Illinois ex rel McCollum v. Board of Education 333 US 203 (1948)>
<Zorach v. Clauson 343 US 306 (1952)>
{note: all on line; each student will be assigned one case from the list above}
O’Brien, pp. 718-35—freedom from and of religion; establishment
2. "Modern" Cases
Everson v . Board of Education, pp. 735-41
Engle v. Vitale, pp. 742-6
Abington School District v. Schempp, pp. 746-51
Lemon v. Kurtzman, pp. 751-8
Wallace v. Jaffree pp. 758-66
Lee v. Weisman, pp. 768-73
Zobrest v. Catalina Foothills School District, pp. 773-6
Board of Ed., Kiryas Joel Village School District v. Grumet—on line
Rosenberger v. The Rector and Visitors of the UVA, pp. 777-87
Agostini v. Felton, pp. 787-93
Zelman v. Simmons-Harris, pp. 793-803
Elk Grove Unified School District v. Newdow, pp. 166-73
Van Orden v. Perry, pp. 803-10
McCreary County v. ACLU of Kentucky, pp. 810-19
B. Free Exercise of Religion
O’Brien, pp. 819-27—free exercise
1. State Regulations
Braunfield v. Brown 366 US 599 (1961)--on line
Gallagher v. Crown Kosher Market 366 US 617 (1961)—on line
Sherbert v. Verner, pp. 828-31
O’Brien’s case list upholding free exercise, pp, 831-3
Wisconsin v. Yoder, pp. 834-7
Heffron v. International Society for Krishna Consciousness (ISKCON)
452 US 640 (1981)—on line
Employment Division, Dept. of Human Resources of Oregon v.
Smith pp. 837-45
Church of the Kukumi Babalu Aye, Inc., v. City of Hialeah pp. 846-52
City of Boerne v. Flores, pp. 852-62
Locke v. Davey, pp. 862-5
2. Religious Practices Outside Business
<Reynolds v. U.S. 98 US 145 (1879>
<Davis v. Beason 133 US 333 (1890)>
<Cantwell v. Connecticut 360 US 296 (1940)>
<Torcaso v. Watkins 367 US 388 (1961)>
{note: all on line; each student will be assigned one case from the list above}
O’Brien’s comparative perspective, pp. 866-9
V. Privacy--Does it exist as a Constitutional liberty from interference by government?;
if so, what are the limits to the right of privacy, if any?
O’Brien, pp. 1232-5
A. Background
Warren and Brandeis: The Right to Privacy. 4 Harvard Law Review 193 (1890)
e-reserve
[Mill. On Liberty excerpt, reprise]—e-reserve
<Jacobson v. Massachusetts 197 US 11 (1905)>
<Buck v. Bell 274 US 200 (1927)>
<Skinner v. Oklahoma 316 US 535 (1942)>
{note: all on line; each student will be assigned one case from the list above}
B. Griswold
Griswold v. Connecticut
Katz v. U.S. pp. 978-82
C. Reproductive Rights
pp. 359-68
O’Brien, pp. 1236-46
Buck v. Bell, pp. 1247-8
O’Brien, pp. 1249-53—oral argument and Roe v. Wade
Roe v. Wade pp. 1253-62
Maher v. Roe, pp. 1262-5
O’Brien’s post-Roe list, pp. 1266-9
[Rust v. Sullivan]
O’Brien, pp. 1270-1—drafting Casey
Planned Parenthood v. Casey pp. 1271-83
Gonzales v. Carhart, pp. 1283-92
O’Brien’s list of state regulations, pp. 1293-5
D. Personal Autonomy and Privacy
O’Brien, pp. 1296-1300—personal autonomy and privacy
O’Brien, Vote switching, pp. 1301-3
Bowers v. Hardwick 478 US 186 (1986)—on line
Lawrence v. Texas, pp. 1304-15
Cruzan by Cruzan v. Director, Missouri Dept. of Public Health pp. 1316-23
Washington v. Glucksberg, pp. 1323-33
{note: Bowers and Lawrence will be discussed together and due the same date}
VI. "And We Are Not Saved": 14th Amendment and Equal Protection
O’Brien, pp. 1334-44
A. "State action"
O’Brien, pp. 1344-60—racial discrimination and state action
Dred Scott v. Sandford, pp. 1360-71
The Slaughterhouse Cases p. 277-81
The Civil Rights Cases pp. 1371-8
Plessy v. Ferguson pp. 1378-83
Korematsu v. United States 323 U.S. 214--on line
{note: all but Korematsu in the text; each student will be assigned one case from the list above}
Shelley v. Kraemer p. 1383-5
B. Racial Discrimination in Education
O’Brien’s chronology of the Civil Rights Movement, pp. 1385-8
O’Brien, pp. 1388-1401—racial discrimination in education
Brown v. Board of Education I p. 1401-6
O’Brien’s inside the Court, pp. 1406-12
Bolling v. Sharpe p. 1413
Brown v. Board of Education II p. 1413-16
{note: the two Brown cases will be treated as one brief, due when Brown I is discussed in
class}
Cooper v. Aaron p. 1416-21
Swann v. Charlotte-Mecklenburg Board of Education p. 1422-6
Milliken v. Bradley p. 1427-30
Freeman v. Pitts, pp. 1431-4
Oral Arguments, 1434-9
Parents Involved in Community Schools v. Seattle School Dist. #1, pp. 1440-53
Other rulings, pp. 1454-6
C. Affirmative Action and Reverse Discrimination
O’Brien, pp. 1456-63
Regents v. Bakke Redux, pp. 1464-73
Other rulings on affirmative action and reverse discrimination, pp. 1473-7
City of Richmond v. J.A. Croson, pp. 1477-88
AGC v. Jacksonville, pp. 1488-91
Adarand v. Pena, pp. 1491-1500
Gratz v. Bollinger, pp. 1500-1505
Grutter v. Bollinger Redux, pp. 1505-13
D. Nonracial Classifications and Equal Protection
O’Brien, pp. 1513-21
Frontiero v. Richardson, pp. 1521-24
Craig v. Boren, pp. 1525-9
Michael M. v. Sonoma County, pp. 1529-32
United States v. Virginia, pp. 1533-44
O’Brien’s list, pp. 1544-8
O’Brien, pp. 1548-50--Gay rights
Romer v. Evans, pp. 1550-60
Lawrence v. Texas Redux
O’Brien’s comparative perspective, pp. 1561-3
O’Brien, pp. 1563-4--Wealth and illegitimacy [O’Brien’s classification, not necessarily
endorsed by the instructor]
Shapiro v. Thompson, pp. 1564-7
San Antonio Independent School District v. Rodriguez, pp. 1567-74
Other rulings, pp. 1574-8
O’Brien, pp. 1578-9--Alienage and age [same caveat as above]
O’Brien’s list of alienage and age cases, pp. 1579-83
Plyler v. Doe, pp. 1583-8
O’Brien, p. 1588-9--Mental health and retardation
Heller v. Doe, pp. 1589-92
VII. Conclusion: Where would we be without the 14th Amendment? (no new readings)
How To Brief A Case
Acquire an understanding of cases by following the prescribed pattern shown below. This briefing
format is designed to bring out the essentials of any case. Also see O’Brien, pp. 1595-8
1. Name of the case. The title of each case is taken from the names of the two parties to the
controversy. The name which appears first is the party bringing the action (the plaintiff, petitioner or
appellant). The defendant (respondent or appellee) is the other party, against whom the action is taken.
Always underline case names (if you have a word processor, you may use italics instead).
2. Citation. Volume Number of the Report, Report Title, Page Number, and Year of Decision. For
example: M'Culloch v. Maryland 4 Wheaton 316 (1819).
3. Facts of the case.
a. Make a short statement which summarizes the circumstances that brought about the case or
controversy. Sometimes the facts are stated clearly, sometimes the facts are scattered
throughout the case.
b. Be sure to know who the parties to the case are and what, if any, were the holdings in the
lower courts.
c. Know precisely what provisions of the Constitution or statute(s) are involved in the claims
of the parties and/or previous holdings in lower courts. Much of "the law" may be
constitutional standards judicially created, or rules, doctrines, or tests, regulations, decisions,
policy statements or agency orders.
4. The Question(s). Raise the question(s) of the case in question form, stating the provisions of the
Constitution which may be involved (if the Constitution is involved). The question(s) indicate(s) the
nature of the conflict of interests which the Court resolves. In the above case example, the first
question is: Does Congress have the power (Art. I, Sec. 8) to establish a national bank through
Congress' legislative powers? Some cases have more than one question, in which instance listing the
questions in proper sequence is very important.
5. The Decision. This is the answer to the question(s) and includes the "action of the Court" (e.g.,
reversed, remanded, affirmed, etc.) and the vote of the Court. If you have raised the question(s) in
question form, the answer portion of this segment will be either "yes" or "no." (Add the number of
dissenters [if any] and usually subtract from 9; this usually will result in an accurate vote count.)
6. Opinion. This is the chain of legal reasoning that led the Court majority to its decision. It should
be outlined point by point. Be concise. Begin the opinion by noting the author of the majority view.
Reliance on long quotes is not helpful.
7. Separate Opinions. Some justices may agree in decision but for different reasons. These are
concurring opinions, which you should note briefly. Other justices may disagree with the holding of
the majority, in which instance they will dissent and offer reasons for their disagreement. Briefly note
those. In addition, if for any reason you find a justice who does not participate in a case note that and
adjust your vote of the Court accordingly.
8. The Rule of Law. This may consist of two parts and is the most difficult portion of the brief to
create. The rule of law is a summary of the outcome, based on the question, the decision, and the
opinion. It can be carefully constructed in one or two sentences.
9. Evaluation. Are you convinced by the majority? So what? Does the decision diverge or parallel
other cases in the given subject matter? So what?