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POL 450: American Civil Rights and Civil Liberties
The University of Dayton
M/W 3 – 4:15 p.m., Marianist 217
Winter 2005 Semester
Professor Jason Pierce
232 St. Joseph’s Hall
(937) 229-2596
[email protected]
Office Hours: M 9-10 a.m.
W 11 a.m. – 12 p.m.
and by appointment
COURSE DESCRIPTION
Americans are perhaps more conscious of their constitutional rights and liberties than citizens from most other
countries. This is hardly surprising given that the Supreme Court’s has handled some of the most highly
controversial and divisive social and political issues—decisions that fundamentally effect the way we live and
govern ourselves. This course on civil rights and liberties brings into stark relief the fundamental tension within
our liberal democracy between majority-rule and protection of individual rights through the Bill of Rights. This
course explores how the Supreme Court has reconciled this tension and introduces students to the corpus of
rights and liberties developed under the U.S. Constitution.
DESCRIPTION
The first third of the course takes up the topic of civil rights and liberties in a general fashion, considering some
of the philosophical justifications for the protection of individual rights in constitutional democracies. It
explores the history surrounding the adoption of the U.S. Bill of Rights. Central to this portion of the course
will be an examination of the historical and political contexts that precipitated its adoption and an exploration of
what its authors intended by it and whether these intentions can and should bear any relevance today. It then
introduces a recurring theme: Does the Supreme Court, as the final arbiter of the Constitution, offer the
exclusive or best venue for rights protection?
The rest of the course is dedicated to exploring the U.S. Supreme Court’s development of civil rights and
liberties. Here the course draws heavily upon relevant Supreme Court decisions, supplemented by the
occasional article. The course focuses on the Court’s treatment of the First, Fourth, Fifth, Fourteenth, and
Fifteenth Amendments, charting the contours to speech protections, religious freedom, press freedoms, rights of
the accused, and several issues concerning privacy rights. A substantial amount of time will be dedicated to the
Court’s development of the equal protection and due process clauses.
Students will develop a better appreciation not only for the scope and nature of rights protected under the
Constitution, but will also critically evaluate the value of court-driven rights protection. Are the courts better
equipped than other branches with skills or perspectives to handle rights protection? Is the Supreme Court the
appropriate or best place for weighty matters of how we live and govern to be determined? What role can and
should the other branches have?
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REQUIRED TEXTS, READINGS, AND EVENTS
The following book is required: David O’Brien’s Constitutional Law and Politics Volume 2: Civil Rights and
Liberties (5th edition, 2003).
We will utilize O’Brien’s casebook in every class, so please bring it to each class—think of it as upper-body
exercise. A number of articles will be posted on the course E-Reserve webpage. The password is
“constitution.”
I also ask you to attend a guest lecture on the evening of Jan. 24. An Australian historian, Corinne Manning,
will be on campus to US-Australian relations. Finally, I ask you to attend the Stander Symposium in early
April.
REQUIREMENTS AND EVALUATION
Some students take this course because they are considering or plan on attending law school. If that is your
motivation, I’m glad you’re in the class, but I cannot guarantee that this course will give any leg up. Indeed, the
admonition I received in my law school constitutional law course was, “Forget everything you learned as an
undergrad about con law.” While I hope you don’t do that, this course is not designed to prepare you for law
school.
Having said that, the subject matter lends itself to a class format that one may find in law school. There will be
relatively few straight lectures and much more dialogue between students and the professor. Some students
become frustrated with this Socratic style of teaching because they are accustom to being passive consumers of
information. If you’re looking for that sort of course, I suggest you look elsewhere.
This course will require that you come to each class prepared and ready to engage the material and discussion
for seventy-five minutes. Preparing for class requires a substantial time commitment. Don’t be deceived by the
quantity of pages assigned. It’s dense and takes time. The cases will contain many words and concepts with
which you are unfamiliar. You often may have to read cases two or three times before you gain mastery of the
material. Furthermore, the material is cumulative and the workload increases as the semester proceeds. This
course pays its greatest dividends to those who persist, ask questions, re-read, and engage the material.
No form of academic dishonesty will be tolerated. Academic dishonesty is defined in UD’s Bulletin as “any
attempt by the student to obtain, or to assist another student to obtain, a grade higher than honestly earned.” I
ask each student to read and become familiar with the university’s definitions and policies regarding academic
dishonesty (2002 Bulletin, pp. 66-68).
It is my policy to assign an F in the course for any student who commits academic dishonesty.
To ensure that all work completed for this course is done with integrity, I will require every student to write out
and sign on each assignment the following pledge: “I am aware of UD’s policies regarding academic
dishonesty. I have neither given nor received any undue aid on this assignment.”
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There will be no make-up exams or extensions on assignments, save for medical or other emergencies.
Documentation will be required. Assignments will be considered late if they are not submitted at the designated
time and be docked one letter grade and then 5 points for every hour afterwards.
Your grade for the course will be based on a quiz, a mid-term examination, a moot court exercise, and a final
exam. The breakdown for your final grade is as follows:
10%
35%
20%
35%
Supreme Court Quiz
Mid-Term Exam
Moot Court Exercise
Final Exam (comprehensive)
Except for the early quiz, all assignments will involve a solid amount of writing: mid-term take-home of 5-7
pages; moot court brief/opinion 10 pages; final exam take-home 5-7 pages.
Your course grade will be determined using the plus-minus system. I will use the following guide for
translating numerical grades into letter grades:
A
A-
94 - 100
90 - 93.9
B+
B
B-
87 - 89.9
84 - 86.9
80 - 83.9
C+
C
C-
77 - 79.9
74 - 76.9
70 - 73.9
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Class Schedule and Readings
I suspect many of you are familiar with the Supreme Court’s processes and history. Before diving into the civil
rights/liberties pond, I’ll ask you to refresh your mind by reading select pages from O’Brien’s Chapters 1 and 2.
We will briefly discuss this material in class, but not comprehensively. So we can put the nuts-and-bolts stuff
behind us early in the semester, there will be a 30-minute quiz on Chapters 1 and 2 administered on Jan. 12 (33:30 p.m.). Read the following pages to prepare for the quiz:
The Supreme Court, Judicial Review and Constitutional Politics
O’Brien: 23-40
The Supreme Court Workings, History
O’Brien: 103-120, 124-129, 166-186
KEY DATES:
Jan. 12
Jan. 17:
Feb. 21:
April 11:
April 18:
April 26:
SUPREME COURT QUIZ
No Class – MLK Day
MIDTERM EXAMINATION
Moot Court Exercises (NOTE: Class will run 3 - 5:30 p.m.)
Moot Court Opinions Due
FINAL EXAM (2-3:50 p.m.)
Introductions: The Centrality of Rights Talk in Contemporary American Politics
No reading.
TOPIC 1: Philosophical Foundations and the Historical Context to the Bill of Rights
Mary Glendon, Rights Talk
Mill, On Liberty (excerpts) (E-Reserve)
Kendall, The Open Society and Its Fallacies (E-Reserve)
Hamilton, Federalist #84 (E-Reserve)
Anti-Federalist #84 (E-Reserve)
Anti-Federalist “John DeWitt” #2 (E-reserve)
Madison versus Jefferson (E-Reserve)
Recommended:
Robert A. Goldwin, From Parchment to Power
Bernard Schwartz, The Great Rights of Mankind
TOPIC 2: Nationalization of the Bill of Rights
O’Brien:
301-333; 335-349
Key cases:
Barron v. The Mayor and City of Baltimore (1833)
The Slaughterhouse Cases (1873)
Hurtado v. California (1884)
Palko v. Connecticu (1937)
Adamson v. California (1947)
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Griswold v. Connecticut (1965)
Duncan v. Louisiana (1968)
TOPIC 3: Freedom of Expression and Association
O’Brien:
370-379; 380-408; 409-413
Key cases:
Schenck v. U.S. (1919)
Gitlow v. People of the State of New York (1923)
Dennis v. US (1951)
Brandenburg v. Ohio (1969)
TOPIC 4: Obscenity and Pornography
O’Brien:
420-426, 427-470
Key cases:
Roth v. US (1957)
Alberts v. California (1957)
Stanley v. Georgia (1969)
Miller v. California (1973)
New York v. Ferber (1982)
Reno v. ACLU (1997)
National Endowment for the Arts v. Finley (1998)
Ashcroft v. Free Speech Coalition (2002) (E-reserve)
Ashcroft v. ACLU (2004)
TOPIC 5: Fighting Words and Offensive Speech
O’Brien:
471-476, 476-506
Key cases:
Cohen v. California (1969)
Fed. Communications Commission v. Pacifica Foundation (1978)
R.A.V. v. City of St. Paul, Minnesota (1992)
Wisconsin v. Mitchell (1993)
Virginia v. Black (2002) (E-reserve)
TOPIC 6: Symbolic Speech and Speech-Plus Conduct
O’Brien:
611-633, 633-640
Key cases:
West Virginia State Board of Education v. Barnette (1943)
Tinker v. Des Moines Indep. Community School District (1969)
Texas v. Johnson (1989)
TOPIC 7: Freedom of Association
O’Brien:
640-645; 646-662
Key cases:
NAACP v. Alabama (1958)
Roberts v. United States Jaycees (1984)
Boy Scouts of American v. Dale (2000)
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TOPIC 8: Freedom From and of Religion
O’Brien:
663-670
The (Dis)establishment of Religion
O’Brien:
672-689, 690-785
Key cases:
Everson v. Board of Education of Ewing Township (1947)
Engel v. Vitale (1962)
Abington School District v. Schempp (1963)
Lemon v. Kurtzman (1971)
Wallace v. Jaffree (1985)
Lee v. Weisman (1992)
Agostini v. Felton (1997)
Mitchell v. Helms (2000)
Good News Club v. Milford Central School (2001)
Locke v. Davey (2003)
Zelman v. Simmons-Harris (2003)
Elk Grove Unified School District v. Michael A. Newdow (2004)
Free Exercise of Religion
O’Brien:
785-792, 792-834
Richard Morgan, Disabling America Ch. 1, 2 (E-reserve)
Key cases:
Wisconsin v. Yoder (1972)
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)
City of Boerne v. Flores (1997)
Watchtower Bible & Tract Society of New York v. Village of Stratton (2002)
TOPIC 9: Assessing Civil Rights and Liberties in American Politics
R. George, “Making Men Moral,” ch. 7 (excerpts) (E-Reserve)
Devlin, The Enforcement of Morals (1968) (E-Reserve)
Dworkin, A Matter of Principle (excerpts) (E-Reserve)
Others TBA.
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Justifications for rights secured under BRts
See Easton’s book for various theories
When can liberties be limited?
Liberalism says it can’t be
If time permits:
Ch. 11: Right of Privacy
Privacy and Reproductive Freedom
Privacy and Personal Autonomy
David O’Brien. 1999. Constitutional Law and Politics Volume II:
Civil Rights and Civil Liberties. (4th ed.) WW Norton & Company
S. Ahlstrom, A Religious History of the American People (1974) (excerpts)
A. Amar, “Fourth Amendment First Principles,” 107 Harvard Law Review 757 (1994)
Robert Dahl, "Decision-making in a Democracy: The Supreme Court as a National Policy-Maker," Journal of
Public Law, vol. 6. (1957)
D. Cole, No Equal Justice: Race and Class in the Amercan Criminal Justice System (1999) (excerpts)
Robert George, "Toward a Pluralistic Perfectionist Theory of Civil Liberties," in Making Men Moral (1993)
J. D. Hunter, Culture Wars: The Struggle to Define America (1991) (excerpts)
R. Ketcham (ed.), The Anti-Federalist Papers and the Constitutional Convention Debates (excerpts)
Leonard Levy, Origins of the Bill of Rights (1999) (excerpts)
John Locke, A Letter Concerning Toleration (1689)
Mari Matsuda, "When the First Quail Calls: Multiple Consciousness as Jurisprudential Method" 11 Women's
Rights Law Reporter 7 (1989)
John Stuart Mill, On Liberty (excerpts)
Michael Perry, We the People: The Fourteenth Amendment and the Supreme Court (1999)
Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991) (excerpts)
N. Strossen, Defending Pornography : Free Speech, Sex, and the Fight for Women's Rights (2000) (excerpts)
C. Sunstein, The Partial Constitution (1993) (excerpts)
Jeremy Waldron, Law and Disagreement (1999) (excerpts).
James Q Wilson, “On Abortion,” Commentary vol. 97:1 (January 1994).
Primary Casebook:
SENTENCING GUIDELINES
Jud process
-federal v. state crimes\f
Pre-sentencing investigation report
Sentencing charts
Downward or upward departures
Some circuits
Statistics put out by administrative office regarding circuit patterns
CA j who goes downward ½ time; philosophical dilemma with this?
Sentencing guidelines as venue in which separation of powers disputes at play
SC case dealing w/ interp of sentencing statute giving permission for downward pressure?out of the heartland of
the guidelines
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-attorneys have opportunity to file objections to pre-sentencing investigation reports
-probation office examines objections; addendum filed revise or reject
-letters written for defendant
-what variables are used to determine criminal background calculation
-how often do js abide by recommended sentencing
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