University of Denver LAS: Dimensions of Justice Winter Quarter 2016

Transcription

1 University of Denver LAS: Dimensions of Justice Winter Quarter 2016 Faculty: Tiffani Lennon Phone: Office Hours: By appointment only. Please . Required Text: (a) Ronald Dworkin, Taking Rights Seriously (1978). Optional Text: Erwin Chemerinsky, Constitutional Law: Principles and Policies, 3 rd Ed. Supplement (2006); I. COURSE DESCRIPTION Why is it that the Ku Klux Klan (KKK) can promote white supremacy? How can pornographers create films depicting stimulated rape scenes and submissive and degrading images of women of color? What gives the state its power to ban certain religious practices and marriages? The U.S. Supreme Court has recognized that the KKK and pornographers have constitutional rights guaranteeing them the ability to exercise their liberties free from government intervention provided no direct harm ensues. The state, through the Tenth Amendment, can place limitations on society in the interest of society that is for the wellbeing and interest of its residents. Yet, many lawyers, judges, and activists have argued that there also exists the equal protection guarantee for African Americans and women. This conflict or competition of rights is referred to as competing rights. In modern U.S. society, a great amount of tension or competition exists between rights and liberties. Competing rights arise because law and society are intimately interwoven. When an individual exercises her liberties, there exists the likelihood that the exercise of her liberty will result in a deprivation to another. For example, there exists tension between prohibiting hate speech (equality) and freedom of speech, between abortion rights and the interest of the state in protecting life. Competing rights are seen in various constitutional contexts from commerce and abortion to the First Amendment. In trying to resolve competing rights, the Court must strike an adequate balance in order to uphold justice. Justice is the process and principle of delivering and upholding rights and liberties. This course will explore sociolegal approaches in justly resolving competing rights. II. COURSE OBJECTIVES A. Acquire knowledge about fundamental rights and legitimate government interests in the U.S. B. Understand the tension between constitutional rights; and become verse in the government powers and limitations outlined in the Fifth, Tenth and Fourteenth Amendments, C. Understand the differences, similarities and the interrelationship between equality and liberty. 1

2 D. Apply sociolegal and philosophical approaches to resolving competing rights. III. LEARNING OBJECTIVES A. Understand and apply knowledge about the three branches of government B. Comprehend and apply at least six fundamental rights in written assignments C. Demonstrate an ability to examine constitutional issues critically and from multiple perspectives D. Demonstrate your knowledge from this course in a culminating paper. Write a paper grounded in research articulating at least two constitutional rights or powers, and discuss the tension that exists; apply the readings to the issue(s) you identify E. Demonstrate your knowledge from this course orally in a professional presentation. IV. COURSE COMPONENTS A. Class Attendance and Participation B. Assignments (3) C. Paper (1) D. Presentation (1) V. OVERALL CLASS GRADING A. You may accrue a total of 100 points. B. Each assignment is worth 15% of your overall grade. C. Research paper is worth 30% and a minimum of 10 pages in length. D. Ten minute presentation on any topic-- 15% of overall grade. E. Class participation and attendance are worth 10% of your final grade. VI. ATTENDANCE AND PARTICIPATION Class attendance and class participation are mandatory. Only emergencies due to circumstances beyond your control are considered excused absences, and/or observed religious holidays provided the student gave advanced, written notice to the instructor. VII. CRITERIA FOR GRADING PRESENTATIONS You will present on the topic of your paper. The purpose of the presentation is to give you an opportunity to fine-tune and further develop your paper. In helping you to do so, your classmates will provide feedback. Your presentation will be 20 minutes in length. You must include a handout. You will be graded on cohesiveness, clarity, timeliness, understanding of the material, and your presentation handout. You should allow for 5 minutes for questions and comments from the class. VIII. ACADEMIC INTEGRITY The Women s College fully endorses the University of Denver s Honor Code and the procedures put forth by the Office of Citizenship and Community Standards. Academic dishonesty including plagiarism, cheating, and falsification of data and 2

3 research is in violation of the code and will result in a failing grade for the assignment or for the course. As student members of a community committed to academic integrity and honesty, it is your responsibility to become familiar with the DU Honor Code and its procedures ( IX. ADA ACCOMMODATIONS Students who require accommodations under the Americans with Disabilities Act must contact the instructor immediately to discuss their needs. Failure to notify the instructor immediately may hinder the College s ability to accommodate accordingly. The instructor will also provide accommodations for students with learning disabilities. Students with learning disabilities must also notify the instructor immediately so that accommodations can be provided. X. OBSERVATION OF RELIGIOUS HOLIDAYS Students wishing to observe a religious holiday not celebrated on the academic calendar may do so provided advanced written notice is given the instructor during the first two weeks of the quarter. With advanced, written notice, the absence will be considered an excused absence. XI. CRITERIA FOR GRADING RESEARCH PAPERS A. Grammar B. Presentation of both sides of argument C. Critical review/analysis D. Original ideas or critiques E. Discuss practical, real-world application and/or implications F. Tightness of discussion; good presentation and construction of ideas XII. ACCESSING ASSIGNMENTS AND COURSE INFORMATION A. BLACKBOARD/WEBCENTRAL: You will be responsible for checking Blackboard for class announcements, participation in discussion boards, and non-text readings. B. ACCESSING SUPREME COURT CASES: You should pull Supreme Court cases online. You may use Lexis-Nexis, Westlaw, FindLaw, etc. XIII. PAPER DESCRIPTION 1. Review material from classes 1-3. Choose 2 constitutional law principles/issues that are of interest to you. Principles may include such examples as the Equal Protection Clause and the Tenth Amendment; Free Speech and the Equal Protection Clause; or, Federal War Powers and Free Speech; Federal War Powers and the Tenth Amendment. 2. Explore in writing at least 2 modern cases (from the late 1970's-on, and/or select cases that are still good law/precedence) where these constitutional law issues have been in tension with each other. Explain the relevant details of the cases, the existing tension, and how the Court resolved the tension (identify the Court's rationale). 3

4 3. Select 2 readings from classes 4-7 and apply the material to the cases and tension you choose. Do this to help explain and resolve the tension articulated in your papers from a sociolegal perspective. 4. You should incorporate the readings (at least 2) discussed in classes 4-7. Avoid sweeping generalizations and commentary; instead, analyze your paper based upon the supporting evidence you ve collected/chosen. Please note that analysis is different from commentary. 5. Select at least 3 academic sources, all of which can be assigned readings from this class. Academic sources do not include information pulled from advocacy organization s web sites, Wikipedia, etc. Books, journal articles and online databases are considered academic. Visit for online databases. XIX. ASSIGNMENTS CLASS ONE Understanding Rights and Liberties Readings: (a) Charles Epp, Rights Revolution, Ch. 2 & Ch. 3; (b) Optional: Chemerinsky Text, Ch. 6 & 7 (skim). [NOTE: Reading (a) is located on Canvas under Course Files.] (c) Read the 2015 World Report on Human Rights Watch for the U.S. available at Assignment: Select 2-3 cases and: (i) provide case background for each; (ii) discuss the right(s) at issue. Be prepared to turn in your assignment at the beginning of class. CLASS TWO Understanding Fundamental Rights Under the Equal Protection & Due Process Clauses Optional Reading: Chemerinsky, Ch. 9 & 10 Assignment: Select 2-3 cases and: (i) provide case background for each; (ii) discuss the equal protection and/or due process implications; (iii) identify any/all competing rights at issue for each case. CLASS THREE Understanding First Amendment Rights Optional Reading: Chemerinsky, Ch. 11 & 12 Assignment: Select 2-3 cases mentioned in Ch. 11 & 12 and do the following: (i) provide case background for each including the Supreme Court s decision and why; (ii) discuss the first amendment implications; (iii) identify any/all competing rights for each case. CLASS FOUR Understanding the Conflict and Tension Between Rights and Liberties Readings: Dworkin, Ch. 4 & 5. Assignment: Outline of Paper Due CLASS FIVE Stepping Out of the Tension and Conflict 4

5 Readings: (a) Dworkin, Ch. 6 (optional reading); (b) Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. Legal Stud. 725, 726 (1998); (c) Rebecca Brown, Liberty and the New Equality, NYU Law Review (2002). [Note: readings (b) and (c) can be found on Canvas under course files.] Assignment: Presentations CLASS SIX Exploring How to Resolve Competing Rights Tensions Readings: Dworkin, Ch. 7 & 10 Assignment: Presentations CLASS SEVEN Resolving Competing Tensions Continued Readings: (a) Dworkin, Ch. 12 & 13; (b) Charles Epp, Rights Revolution, Ch. 11. [NOTE: Reading (b) is located on Blackboard under Course Documents.] CLASS EIGHT: Peer Reviews Assignment: Draft Papers Due CLASS NINE: Presentations Assignment: Presentations on your paper topics must include a visual component such as a PowerPoint or Prezi CLASS TEN: Assignment: Final Paper Due 5

6 EQUAL PROTECTION AND THE 14 TH AMMENDMENT 10 LANDMARKCASES The Slaughter-House Cases (14 Apr 1873) In the Slaughter-House Cases, waste products from slaughterhouses located upstream of New Orleans had caused serious health problems for years by the time Louisiana decided to consolidate the industries into one slaughterhouse located south of the city. Slaughterhouse owners were incensed. They challenged the state s action citing the 14th Amendment s Privileges and Immunities Clause as their remedy. The Court said that the Privileges and Immunities Clause only prevented the federal government from abridging privileges and immunities guaranteed in the 14th Amendment and that the clause did not apply to the states. The move gutted the Privilege and Immunities Clause of its effect and kept the door open for Jim Crow laws in the South. To this day the Privileges and Immunities Clause is seldom invoked. Plessy v. Ferguson (18 May 1896) The Louisiana legislature had passed a law requiring black and white residents to ride separate, but equal, train cars. In 1892, Louisiana police arrested Homer Adolph Plessy who was seven-eighths Caucasian for taking his seat on a train car reserved for whites only because he refused to move to a separate train car reserved for blacks. Plessy argued that the Louisiana statute violated the 13th and 14th Amendments by treating black Americans inferior to whites. Plessy lost in every court in Louisiana before appealing to the Supreme Court in In a 7-1 decision, the Court held that as long as the facilities were equal, their separation satisfied the 14th Amendment. Justice Harlan authored the lone dissent. Passionately he clarified that the Constitution was color-blind, railing the majority for an opinion which he believed would match Dred Scott in infamy. Lochner v. New York (17 Apr 1905) Lochner, a baker from New York, was convicted of violating the New York Bakeshop Act, which prohibited bakers from working more than 10 hours a day and 60 hours a week. The Supreme Court struck down the Bakeshop Act, however, ruling that it infringed on Lochner s 6

7 right to contract. The Court extracted this right from the Due Process Clause of the 14th Amendment, a move that many believe exceeded judicial authority. Gitlow v. New York (08 June 1925) Prior to 1925, provisions in the Bill of Rights were not always guaranteed on the local level and usually applied only to the federal government. Gitlow illustrated one of the Court s earliest attempts at incorporation, that is, the process by which provisions in the Bill of Rights has been applied to the states. A socialist named Benjamin Gitlow printed an article advocating the forceful overthrow of government and was arrested pursuant to New York state law. Gitlow argued that the First Amendment guaranteed freedom of speech and the press. On appeal, the Supreme Court expressed that the First Amendment applied to New York through the Due Process Clause of the 14th Amendment. However, the Court ultimately ruled that Gitlow s speech was not protected under the First Amendment by applying the clear and present danger test. The Court s ruling was the first of many instances of incorporating the Bill of Rights. Brown v. Board of Education (17 May 1954) It is impossible to mention victories of the Civil Rights Movement without pointing to Brown v. Board of Education. Following the Court s ruling in 1896 of Plessy v. Ferguson, segregation of public schools based solely on race was allowed by states if the facilities were equal. Brown overturned that decision. Regardless of the equality of facilities, the Court ruled that separate is inherently unequal. Thus public school segregation based on race was found in violation of the 14th Amendment s Equal Protection Clause. Mapp v. Ohio (19 Jun 1961) What happens when the police obtain evidence from an illegal search or seizure? Before the Court s decision in Mapp, the evidence could still be collected, but the police would be censured. Police had received a tip that a bombing suspect might be located at Dollree Mapp s home in suburban Cleveland, Ohio. When police asked to search her home, Mapp refused unless the police produced a warrant. The police used a piece of paper as a fake warrant and gained access to her home illegally. After searching the house without finding the bombing suspect, police discovered sexually explicit 7

8 materials and arrested Mapp pursuant to state law that prohibited the possession of obscene materials. Mapp was convicted of possessing obscene materials and faced up to seven years in prison before she appealed her case on the argument that she had a First Amendment right to possess the material. The Court held that evidence collected from an unlawful search as this search obviously had been from be excluded from trial. Justice Clark s majority opinion incorporated the Fourth Amendment s protection of privacy using the Due Process Clause of the 14th Amendment, a very controversial move. Gideon v. Wainwright (18 Mar 1963) Prior to 1962, indigent Americans were not always guaranteed access to legal counsel despite the Sixth Amendment. Gideon, a Florida resident, was charged in Florida state court for breaking and entering into a poolroom with the intent to commit a crime. Due to his poverty, Gideon asked the Florida court to appoint an attorney for him. The court declined to do this and pointed to state law which said that the only time indigent defendants could be appointed an attorney was when charged with a capital offense. Left with no other choice, Gideon represented himself in trial and lost. He filed a petition of habeas corpus to the Florida Supreme Court, arguing that he had a constitutional right to be represented with an attorney, but the Florida Supreme Court did not grant him any relief. A unanimous United States Supreme Court said that state courts are required under the 14th Amendment to provide counsel in criminal cases to represent defendants who are unable to afford to pay their own attorneys, guaranteeing the Sixth Amendment s similar federal guarantees. Griswold v. Connecticut (07 Jun 1965) You know when you re walking down the street at night with lights in front of you and behind you, and you get that really dark shadow? In the scientific community, that shadow is known as an umbra. Flanking that dark shadow on the ground are two or more, halfshadows, not quite as dark, but darker than the well-lit sidewalk around you. Those shadows are known as penumbras and were used to explain the most controversial issue of arguably the most controversial Supreme Court case in the 20 th century. Estelle Griswold was the director of a Planned Parenthood clinic in 8

9 Connecticut when she was arrested for violating a state statute that prohibited counseling and prescription of birth control to married couples. The question before the Supreme Court was whether the Constitution protected the right of married couples to privately engage in counseling regarding contraceptive use and procurement. Justice Douglas articulated that although not explicit, the penumbras of the Bill of Rights contained a fundamental right to privacy that was protected by the 14th Amendment s Due Process Clause. Griswold s right to privacy has been applied to many other controversial decisions such as Eisenstadt and Roe v. Wade. It remains at the core of substantive due process debate today. Loving v. Virginia (12 Jun 1967) By 1967, 16 states had still not repealed their anti-misogyny laws that forbid interracial marriages. Mildred and Richard Loving were residents of one such state, Virginia, who had fallen in love and wanted to get married. Under Virginia s laws, however, Richard, a white man, could not marry Mildred, a woman of African-American and Native American descent. The two travelled to Washington D.C. where they could be married, but they were arrested state law which prohibited inter-racial marriage. Because their offense was a criminal conviction, after being found guilty, they were given a prison sentence of one year. The trial judge suspended the sentence for 25 years on the condition that the couple leave Virginia. On Appeal, the Supreme Court of Appeals of Virginia ruled that the state had an interest in preserving the racial integrity of its constituents and that because the punishment applied equally to both races, the statute did not violate the Equal Protection Clause of the 14th Amendment. The United States Supreme Court in a unanimous decision reversed the Virginia Court s ruling and held that the Equal Protection Clause required strict scrutiny to apply to all race based classifications. Furthermore, the Court concluded that the law was rooted in invidious racial discrimination, making it impossible to satisfy a compelling government interest. TheLoving decision still stands as a milestone in the Civil Rights Movement. Regents of the University of California v. Bakke (26 Jun 1978) Allan Bakke, a white man, had been denied access to the University of California Medical 9

10 School at Davis on two separate occasions. The medical school set aside 16 spots for minority candidates in an attempt to address unfair minority exclusion from medical school. All 16 candidates from both years had test scores lower than Bakke s but gained admission. Bakke contested that his exclusion from the Medical School was entirely the result of his race. The Supreme Court ruled in a severely fractured plurality that the university s use of strict racial quotas was unconstitutional and ordered that the medical school admit Bakke, but it also said that race could be used as one of several factors in the admissions process. Justice Lewis F. Powell, Jr., cast the deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell said that the rigid use of racial quotas violated the equal protection clause of the 14th Amendment. In addition to these 10 famous cases, this June s decision in Obergefell v. Hodges, which recognized a national right to same=sex marriage, will likely join the list of notable 14th Amendment cases. In the Court s 5-4 decision, Justice Anthony Kennedy held that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. 10