WESTERN ILLINOIS UNIVERSITY DEPARTMENT OF POLITICAL SCIENCE Civil Liberties and Civil Rights POLS 411G # Spring 2016

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1 WESTERN ILLINOIS UNIVERSITY DEPARTMENT OF POLITICAL SCIENCE Civil Liberties and Civil Rights POLS 411G # Spring 2016 Prof. Victoria Smith Office: Morgan Hall vr-smith@wiu.edu Telephone: (309) Office Hours: M, F 11:00-12:00 p.m. or by appointment Class: M/W/F 10:00-10:50 a.m. Classroom: Morgan Hall 314 Credits: 3 Prerequisite: POLS 122 or by permission of the instructor Course Description The United States Constitution is the foundation upon which all American government is built. The document is more than 225-years old; it is the oldest, written, nation-state constitution in the world. And it is also amazingly concise: the Constitution contains a preamble, seven articles, twenty-seven amendments, and just over 7,000 words. This course will examine how the Constitution has been interpreted and implemented over the past two centuries, with particular focus on the Bill of Rights (i.e., the first ten amendments to the Constitution) and the Fourteenth Amendment (making many of the Bill of Rights guarantees applicable to the states). Required Texts The required readings will be drawn primarily from the following textbook: David Schulz, John R. Vile, and Michelle D. Deardorff, Constitutional Law in Contemporary America: Civil Rights and Liberties, Volume II. New York: Oxford University Press, ISBN: ( Textbook ) (available at the WIU Bookstore). Any supplemental readings will be handed out in class or will be available on Westernonline. If you have any problems accessing Westernonline, please contact University Technology Support Center at (309)

2 Course Schedule and Readings You should have completed all readings and be prepared to discuss them on the date the materials are identified on the syllabus. Any adjustments to the schedule, as appropriate, will be announced in class. The instructor reserves the right to modify course requirements and to alter and/or add readings wherever appropriate. Introduction Wednesday, January 20: Course Introduction and Syllabus Handout: A Special Note on Briefing Cases and Preparing for Classes. Institutions, Politics, and Process, Vol. 1. Handout: Orin S. Kerr, How to Read a Legal Opinion: A Guide for New Law Students, The Green Bag: An Entertaining Journal of Law, Vol. II, No. 1, p. 51 (Autumn 2007). (This article will be handed out in class. It is also available at Bill of Rights: pp. xxvi-xxvii Fourteenth Amendment: pp. xxviii-xxix The Bill of Rights, the 14 th Amendment, and Judicial Scrutiny Friday, January 22 and Monday, January 25: The Incorporation Doctrine and Levels of Judicial Scrutiny Read pp and 50-54, including: Barron v. Baltimore (1833), p.19 Slaughterhouse Cases (1873), p. 26 Hurtado v. California (1884), p. 29 CB&Q Railroad Co. v. Chicago (1897), p. 31 Gitlow v. New York (1925), p. 33 Palko v. Connecticut (1937), p. 35 Cantwell v. Connecticut (1940), p. 37 Adamson v. California (1947), p. 39 Ashwander v. Tennessee Valley Authority (1936), p. 54 United States v. Carolene Products Co. (1938), p. 55. The 14th Amendment, Due Process, and Equal Protection... nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 2

3 Wednesday, January 27 and Friday, January 29: The 14 th Amendment and Race Read pp and pp , including: Civil Rights Cases (1883), p. 744 Plessy v. Ferguson (1896), p. 539 Sweatt v. Painter (1950), p. 542 Brown v. Board of Education (1954), p. 544 Bolling v. Sharpe (1954), p. 546 Brown v. Board of Education II (1955), p. 547 Swann v. Charlotte-Mecklenburg Board of Education (1971), p. 548 Washington v. Davis (1976), p. 553 United States v. Fordice (1992), p Monday, February 1 and Wednesday, February 3: The 14 th Amendment and Gender Read pp and pp , including: Reed v. Reed (1971), p. 569 Frontiero v. Richardson (1973), p. 571 Craig v. Boren (1976), p. 574 Rostker v. Goldberg (1981), p. 577 Michael M. v. Superior Court of Sonoma County (1981), p. 580 Mississippi University for Women v. Hogan (1982), p. 583 United States v. Virginia (1996), p Friday, February 5: The 14 th Amendment and Affirmative Action Read pp and , including: Regents of the University of California v. Bakke (1978), p. 596 Grutter v. Bollinger (2003), p. 621 Parents Involved in Community Schools v. Seattle School Distr. (2007), p. 629 Fisher v. University of Texas (2016) to be provided. Monday, February 8: The 14 th Amendment and Other Classifications Read pp , including: Privacy Rights Ambach v. Norwick (1979), p. 642 Plyler v. Doe (1982), p. 646 City of Cleburne, Texas v. Cleburne Living Center, Inc. (1985), p Wednesday, February 10: Origin of the Right to Privacy and Reproductive Rights Read pp and pp , including: 3

4 Pierce v. Society of Sisters (1925), p. 686 Griswold v. Connecticut (1965), p. 692 (referring back to p. 48) Roe v. Wade (1973), p. 696 Webster v. Reproductive Services (1989), p. 701 Hodgson v. Minnesota (1990), p. 650 Planned Parenthood v. Casey (1992), p. 713 Women of Minnesota v. Gomez (1995), p. 722 Whole Women s Health v. Cole to be provided. Friday, February 12: Lincoln s birthday NO CLASS. Monday, February 15: The Right to Die Read pp , including: Washington v. Glucksberg (1997), p. 728 Vacco v. Quill (1997), p Wednesday, February 17 and Friday, February 19: Sexuality Read pp , including: Bowers v. Hardwick (1986), p. 654 Romer v. Evans (1996), p. 659 Lawrence v. Texas (2003), p. 663 United States v. Windsor (2013) to be provided Obergefell v. Hodges (2015) to be provided. Monday, February 22: Oral argument in Obergefell v. Hodges, 135 S.Ct (2015), appealing the 6 th Circuit s decision in DeBoer v. Snyder, 772 F.3d 388 (6 th Cir. 2014). The First Amendment and the Establishment Clause Congress shall make no law respecting an establishment of religion.... Wednesday, February 24 and Friday, February 26: Separation of Church and State Read pp , including: Everson v. Board of Education (1947), p. 86 Engle v. Vitale (1962), p. 89 Lemon v. Kurtzman (1971), p. 92 Marsh v. Chambers (1983), p. 96 Wallace v. Jaffree (1985), p. 99 Sante Fe Ind. School Dist. v. Jane Doe (2000), p. 104 Zelman v. Simmons-Harris (2002), p. 109 Town of Greece v. Galloway (2014) to be provided. 4

5 The First Amendment and the Free Exercise Clause Congress shall make no law... prohibiting the free exercise [of religion]. Monday, February 29 and Wednesday, March 2: Read pp , including: West Virginia v. Barnette (1943), p. 129 Sherbert v. Verner (1963), p. 133 Wisconsin v. Yoder (1972), p. 137 Employment Division (Oregon) v. Smith (1990), p.142 Burwell v. Hobby Lobby to be provided Zubik vs. Burwell to be provided. The First Amendment and Freedom of Speech Congress shall make no law... abridging the freedom of speech.... Friday, March 4 and Monday, March 7: Seditious Speech and Hate Speech Read pp , pp , pp , and pp including: Schenck v. New York (1919), p. 164 Gitlow v. New York (1925), p. 165 Dennis v. United States (1951), p. 168 Brandenburg v. Ohio (1969), p. 172 Collin v. Smith (1978), p. 220 R.A.V. v. City of St. Paul (1992), p. 223 Wisconsin v. Mitchell (1993), p Wednesday, March 9: Review for Midterm Friday, March 11: In-Class Midterm Monday, March 14 Friday, March 18: Spring Break NO CLASS. Monday, March 21: Symbolic Speech Read pp , and pp , including: United States v. O Brien (1968), p. 229 Tinker v. Des Moines School District (1969), p. 197 Cohen v. California (1971), p. 231 Texas v. Johnson (1989), p. 234 Virginia v. Black (2003), p

6 Wednesday, March 23: Money as Speech Read pp , including: Board of Regents of the University of Wisconsin v. Southworth (2000), p. 193 Citizens United v. Federal Election Commission (2010) to be provided Friedrichs v. California Teachers Association (2016) to be provided. The First Amendment and Freedom of the Press Congress shall make no law... abridging the freedom... of the press.... Friday, March 25 and Monday, March 28: Prior Restraint, Defamation, and Obscenity Read pp , pp , pp , pp , and pp , including: Near v. Minnesota (1931), p. 301 New York Times v. Sullivan (1964), p. 304 New York Times v. United States (1971), p. 307 Miller v. California (1973), p The First Amendment and Freedom of Assembly Congress shall make no law...abridging...the right of the people peaceably to assemble. Wednesday, March 30: Freedom of Association and Public Assembly Read pp and pp , including: Keyishian v. New York Board of Regents (1967), p. 344 NAACP v. Alabama (1958), p. 346 Roberts v. United States Jaycees (1984), p. 348 Boy Scouts of America v. James Dale (2000), p. 352 Hurley v. Irish-American G, L, and B (1995), p The Second Amendment and the Right to Bear Arms A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Friday, April 1: The Right to Bear Arms Read pp , including: 6

7 District of Columbia v. Heller (2008), p. 61 McDonald v. Chicago, 561 U.S. 742 (2010) to be provided. Monday, April 4: Oral argument in District of Columbia v. Heller, 554 U.S. 570 (2008), appealing the D.C. Circuit s decision in Parker v. District of Columbia, 478 F.3d 370 (2007). The Fourth Amendment and Rights of the Accused The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Wednesday, April 6 and Friday, April 8: The Exclusionary Rule Read pp , pp , and pp , including: Wolf v. Colorado (1949), p. 373 (text at p. 44) Mapp v. Ohio (1961), p. 374 (text at p. 46) Warden, Maryland Penitentiary v. Hayden (1967), p. 375 Safford Unified School District #1 v. Redding (2009), p. 379 Illinois v. Gates (1983), p. 414 United States v. Leon (1984), p. 419 Georgia v. Randolph (2006), p. 410 New York v. Harris (1990), p. 424 Florida v. Bostick (1991), p Monday, April 11, Wednesday, April 13, and Friday, April 15: Exceptions to the Warrant Requirement Read pp , pp , and pp , including: Terry v. Ohio (1968), p. 391 Chimel v. California (1969), p. 395 Pennsylvania v. Mimms (1977), p. 399 Whren v. United States (1996), p. 402 United States v. Mendenhall (1980), p. 405 Olmstead v. United States (1928), p. 688 Katz v. United States (1967), p. 384 Kyllo v. United States (2001), p

8 Monday, April 18: Oral argument in Rodriguez v. United States, 135 S.Ct (2015), appealing the 8 th Circuit s decision in 741 F.3d 905 (8 th Cir. 2014). Wednesday, April 20: Excessive Use of Force Read pp , including: Tennessee v. Garner (1985), p. 456 Graham v. Connor (1989), p. 460 Hudson v. McMillian (1992), p The Fifth Amendment and Rights of a Defendant No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.... Friday, April 22 and Monday, April 25: Criminal Due Process Read pp and pp , including: Escobedo v. Illinois (1964), p. 446 Miranda v. Arizona (1966), p. 434 New York v. Quarles (1984), p. 438 Schmerber v. California (1966), p The Sixth Amendment and Rights of a Defendant In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed... and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have Assistance of Counsel for his defense. Wednesday, April 27 and Friday, April 29: Trial by Jury and Assistance of Counsel Read pp and pp , including: Powell v. Alabama (1932), p. 41 Gideon v. Wainwright (1963), p. 445 (referring to p.43) Batson v. Kentucky (1986), p

9 The Eighth Amendment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Monday, May 2 and Wednesday, May 4: Cruel and Unusual Punishment Read: pp and pp , including: Furman v. Georgia (1972), p. 473 Gregg v. Georgia (1976), p. 487 Coker v. Georgia (1977) p. 491 McCleskey v. Kemp (1987) p. 494 Atkins v. Virginia (2002), p. 504 Roper v. Simmons (2005), p. 509 Rummel v. Estelle (1980), p. 513 Harmeline v. Michigan (1991), p. 517 Hurst v. Florida (2016) to be provided. Friday, May 6: Review for Final Exam Graduate student papers due. Monday, May 9: Final Exam at 10:00 a.m. Course Structure As in law school, we will employ the case method of study, reading excerpts from Supreme Court cases and analyzing them in class using the Socratic method a back-and-forth dialogue between the instructor and the students designed to illuminate the key issues of law in each case, their broader significance, and their possible application. Toward that end, students are expected to brief each of the assigned cases in advance of class (noting the litigants, the factual background, the legal issues raised, and the ruling by the court) and be prepared to answer questions about the cases in class. Assessment Class Assignments, Attendance, and Participation (20 percent) Class attendance and participation are very important. You are expected to attend each session and to come to class prepared to discuss the assigned readings. The instructor will additionally give assignments throughout the semester. 9

10 Oral Argument and Bench Memorandum (20 percent) Each student will be expected to participate as either an attorney or a Supreme Court Justice in an oral argument for a case previously decided by the Supreme Court. Students will prepare in-class presentations by reading the appellate decision issued in the case as well as the briefs (petitioner, respondent, and amicus) filed with the Supreme Court. Students who are not assigned a speaking role in a particular case will be asked to draft a bench memorandum in the case. Midterm Examination (25 percent) The midterm will be an in-class exam that covers materials from the first part of the course. We will discuss the format of the midterm and have an opportunity for review in advance of the exam. Final Exam (35 percent) The final will be an in-class exam that is comprehensive in nature, covering material from the entire semester. We will discuss the format of the final and have an opportunity for review in advance of the exam. Graduate Student Credit Graduate students are expected to complete all of the requirements of this course, as well as to write a 15 to 20-page judicial opinion in a case to be assigned by the instructor. Academic Honesty and Student Rights Academic honesty is expected of all WIU students; cheating and plagiarism will not be tolerated. All violations of the academic integrity policy will be reported to the Council on Admission, Graduation, and Academic Standards or to the Graduate Council. The University s academic integrity policy is set forth at and a more complete statement of student rights and responsibilities can be found at Campus Resources for Student Support In accordance with University values and disability law, students with disabilities may request academic accommodations where there are aspects of a course that result in barriers to inclusion or accurate assessment of achievement. To file an official request for disability-related accommodations, please contact the Disability Resource Center at (309) , disability@wiu.edu, or 143 Memorial Hall. Please notify the instructor as soon as possible to ensure that this course is accessible to you in a timely manner. 10