Political Science Civil Liberties

Transcription

1 Political Science Civil Liberties Spring, 2009 Dr. D.S. Mann Maybank # Coming # :50-12:05 TR Office hours F, 10:30-11:30 MWF and by appointment Office phone: Mannd@cofc.edu 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 th Edition. Norton. R. Polenberg. Fighting Faiths. Penguin. You also may need the following Web Sites: Also see O'Brien, pp 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 15 th ): 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

2 Political Science 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.: ) 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-= B+= B = B-= C+= C = C-= D+= D = D-= 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.

3 Political Science Civil Liberties Spring 2009, Dr. Mann, p. 3 Political Science 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)

4 Political Science 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? II. Freedom of Expression Regents of the University of California v. Bakke, pp Grutter v. Bollinger, pp 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 "Clear and Present Danger"--what is (was) it? O Brien, pp Masses Publishing Co. v. Patten--244 F 535 (1917) on line Schenck v. U.S. pp 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 Barron v. Baltimore, pp Meese: Interpreting the Constitution e-reserve Brennan: The Constitution of the United States: Contemporary Ratification

5 e-reserve O Brien, pp "Bad Tendency"--what is it; was it? Gitlow v. N.Y. pp "Clear and Probable Danger"--what is it; was it? Dennis v. U.S. pp Brandenburg v. Ohio pp B. Speech plus what equals protection or not 1. Is there a right to differ from the majority? O Brien, pp symbolic speech plus West Virginia State Board of Education v. Barnette, pp Tinker v. Des Moines Independent Community School District, pp Morse v. Frederick, pp Texas v. Johnson, pp O Brien, pp speech plus O Brien, pp association NAACP v. Alabama, pp Roberts v. U.S. Jaycees, pp Boy Scouts of America v. Dale, pp Rumsfeld v. Forum for Academic and Institutional Rights 126 S.Ct. 327 (2006) on line 2. Offensive Speech O Brien, pp obscenity, pornography, offensive speech Roth v. U.S. and Alberts v. California, pp Stanley v. Georgia, pp Miller v. California, pp excerpt from The Brethren by Woodward and Armstrong e-res Paris Adult Theatre I v. Slaton, pp New York v. Ferber, pp City of Erie v. Pap s A.M., pp Reno v. American Civil Liberties Union, pp Ashcroft v. Free Speech Coalition, pp O Brien, pp fighting words and offensive speech Cohen v. California pp FCC v. Pacifica Foundation pp Bethel School District #106 v. Fraser, pp R.A.V. v. City of St. Paul, Mn, pp Wisconsin v. Mitchell, pp

6 Virginia v. Black, pp Rust v. Sullivan, pp O Brien s comparative perspective, pp C. Commercial Speech--Is Advertising "Protected Speech?" III. Freedom of the Press O Brien, pp commercial speech Bigelow v. Virginia, pp Liquormart, Inc. v. Rhode Island, pp Lorillard Tobacco Co. v. Reilly, pp A. Censorship and Prior Restraint O Brien, pp freedom of the press and no prior restraint 1. Print Media Near v. Minnesota ex. Rel. Olson pp New York Times Co. v. U.S. pp O Brien, pp indirect prior restraints Branzburg v. Hayes pp Broadcast Media Houchins v. KQED, Inc. pp O Brien, pp regulating broadcast and cable Red Lion Broadcasting v. FCC, pp [FCC v. Pacifica] Ashcroft v. American Civil Liberties Union, pp United States v. American Library Association, pp B. Libel--the scope and limit of civil suits C. Fair Trial/Free Press O Brien, pp libel New York Times Co. v. Sullivan pp Gertz v. Welch pp Masson v. The New Yorker Magazine, pp Cox Broadcasting Corp. v. Cohn, pp O Brien, pp Globe Newspaper Co. v. Superior Court, pp

7 IV. Freedom of Religion A. Establishment of Religion 1. Background and "Early" Cases O Brien, pp 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 freedom from and of religion; establishment 2. "Modern" Cases Everson v. Board of Education, pp Engle v. Vitale, pp Abington School District v. Schempp, pp Lemon v. Kurtzman, pp Wallace v. Jaffree pp Lee v. Weisman, pp Zobrest v. Catalina Foothills School District, pp Board of Ed., Kiryas Joel Village School District v. Grumet on line Rosenberger v. The Rector and Visitors of the UVA, pp Agostini v. Felton, pp Zelman v. Simmons-Harris, pp Elk Grove Unified School District v. Newdow, pp Van Orden v. Perry, pp McCreary County v. ACLU of Kentucky, pp B. Free Exercise of Religion O Brien, pp free exercise 1. State Regulations Braunfield v. Brown 366 US 599 (1961)--on line

8 Gallagher v. Crown Kosher Market 366 US 617 (1961) on line Sherbert v. Verner, pp O Brien s case list upholding free exercise, pp, Wisconsin v. Yoder, pp 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 Church of the Kukumi Babalu Aye, Inc., v. City of Hialeah pp City of Boerne v. Flores, pp Locke v. Davey, pp 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 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 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 pp Katz v. U.S. pp C. Reproductive Rights

9 O Brien, pp Buck v. Bell, pp O Brien, pp oral argument and Roe v. Wade Roe v. Wade pp Maher v. Roe, pp O Brien s post-roe list, pp [Rust v. Sullivan] O Brien, pp drafting Casey Planned Parenthood v. Casey pp Gonzales v. Carhart, pp O Brien s list of state regulations, pp D. Personal Autonomy and Privacy O Brien, pp personal autonomy and privacy O Brien, Vote switching, pp Bowers v. Hardwick 478 US 186 (1986) on line Lawrence v. Texas, pp Cruzan by Cruzan v. Director, Missouri Dept. of Public Health pp Washington v. Glucksberg, pp {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 A. "State action" O Brien, pp racial discrimination and state action Dred Scott v. Sandford, pp The Slaughterhouse Cases p The Civil Rights Cases pp Plessy v. Ferguson pp Korematsu v. United States 323 U.S on line {note: all but Korematsu in the text; each student will be assigned one case from the list above} Shelley v. Kraemer p B. Racial Discrimination in Education O Brien s chronology of the Civil Rights Movement, pp O Brien, pp racial discrimination in education Brown v. Board of Education I p

10 O Brien s inside the Court, pp Bolling v. Sharpe p Brown v. Board of Education II p {note: the two Brown cases will be treated as one brief, due when Brown I is discussed in class} Cooper v. Aaron p Swann v. Charlotte-Mecklenburg Board of Education p Milliken v. Bradley p Freeman v. Pitts, pp Oral Arguments, Parents Involved in Community Schools v. Seattle School Dist. #1, pp Other rulings, pp C. Affirmative Action and Reverse Discrimination O Brien, pp Regents v. Bakke Redux, pp Other rulings on affirmative action and reverse discrimination, pp City of Richmond v. J.A. Croson, pp AGC v. Jacksonville, pp Adarand v. Pena, pp Gratz v. Bollinger, pp Grutter v. Bollinger Redux, pp D. Nonracial Classifications and Equal Protection O Brien, pp Frontiero v. Richardson, pp Craig v. Boren, pp Michael M. v. Sonoma County, pp United States v. Virginia, pp O Brien s list, pp O Brien, pp Gay rights Romer v. Evans, pp Lawrence v. Texas Redux O Brien s comparative perspective, pp O Brien, pp Wealth and illegitimacy [O Brien s classification, not necessarily endorsed by the instructor] Shapiro v. Thompson, pp San Antonio Independent School District v. Rodriguez, pp Other rulings, pp O Brien, pp Alienage and age [same caveat as above] O Brien s list of alienage and age cases, pp Plyler v. Doe, pp

11 O Brien, p Mental health and retardation Heller v. Doe, pp VII. Conclusion: Where would we be without the 14th Amendment? (no new readings)

12 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 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.

13 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?