WESTERN ILLINOIS UNIVERSITY DEPARTMENT OF POLITICAL SCIENCE Civil Liberties and Civil Rights POLS 411G # 37862 Spring 2018 Prof. Victoria Smith Office: Morgan Hall 424 E-mail: vr-smith@wiu.edu Telephone: (309) 298-1354 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 312 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, 2011. ISBN: 978-0-19-539006-3 ( Textbook ) (available at the WIU Bookstore). Note: This is NOT the same textbook used in POLS 410G. Any supplemental readings will be handed out in class or will be available on Western Online. If you have any problems accessing Western Online, please contact University Technology Support Center at (309) 298-2704.
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 17: 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 http://ssrn.com/abstract=1160925.) Bill of Rights: pp. xxvi-xxvii Fourteenth Amendment: pp. xxviii-xxix The Bill of Rights, the 14 th Amendment, and Judicial Scrutiny Friday, January 19 and Monday, January 22: The Incorporation Doctrine and Levels of Judicial Scrutiny Read pp. 1-40 and 50-56, 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. 2
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. Wednesday, January 24 and Friday, January 26: The 14 th Amendment and Race Read pp. 524-558 and pp. 744-745, 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. 556. Monday, January 29 and Wednesday, January 31: The 14 th Amendment and Gender Read pp. 559-565 and pp. 569-591, 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. 586. Friday, February 2: The 14 th Amendment and Affirmative Action Read pp. 592-603 and 621-636, 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. Schuette v. Coalition to Defend Affirmative Action, 134 S. Ct. 1623 (2014) to be provided. 3
Monday, February 5: The 14 th Amendment and Other Classifications Read pp. 636-654, 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. 650. Wednesday, February 7 and Friday, February 9: Origin of the Right to Privacy and Reproductive Rights Read pp. 678-687 and pp. 692-721, including: 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 Health Services (1989), p. 701 Hodgson v. Minnesota (1990), p. 707 Planned Parenthood v. Casey (1992), p. 713 Whole Woman s Health v. Hellerstedt (2016) to be provided. Monday, February 12: Lincoln s birthday NO CLASS. Wednesday, February 14: The Right to Die Read pp. 726-737, including: Washington v. Glucksberg (1997), p. 728 Vacco v. Quill (1997), p. 734. Friday, February 16 and Monday, February 19: Sexual Orientation Read pp. 654-667, including: Bowers v. Hardwick (1986), p. 654 Romer v. Evans (1996), p. 659 Lawrence v. Texas (2003), p. 663 United States v. Windsor, 133 S. Ct. 2675 (2013) to be provided Obergefell v. Hodges, 135 S.Ct. 2584 (2015) to be provided. Wednesday, February 21: To Be Announced. 4
The First Amendment and the Establishment Clause Congress shall make no law respecting an establishment of religion.... Friday, February 23 and Monday, February 26: Separation of Church and State Read pp. 75-117, 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. Doe (2000), p. 104 Zelman v. Simmons-Harris (2002), p. 109 Town of Greece v. Galloway, 134 S.Ct. 1811 (2014) to be provided. The First Amendment and the Free Exercise Clause Congress shall make no law... prohibiting the free exercise [of religion]. Wednesday, February 28; Friday, March 2; and Monday, March 5: Read pp. 127-150, 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 (2014) to be provided. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. (2017) to be provided. Wednesday, March 7: Midterm Review Friday, March 9: In-Class Midterm Monday, March 12 Friday, March 16: Spring Break NO CLASS. The First Amendment and Freedom of Speech Congress shall make no law... abridging the freedom of speech.... 5
Monday, March 19: Time, Place, and Manner Restrictions on Speech Read pp. 156-160 and pp. 174-180, including: Kovacs v. Cooper (1949), p. 175 Ward v. Rock Against Racism (1989), p. 177. Wednesday, March 21: Symbolic Speech Read pp. 196-200 and pp. 228-239, 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. Friday, March 23: Seditious Speech and Fighting Words Read pp. 161-174, pp. 181-184, and pp. 211-217, including: Chaplinsky v. New Hampshire (1942), p. 213 Terminiello v. City of Chicago (1949), p. 215 Feiner v. New York (1951), p. 216 Schenck v. United States (1919), p. 164 Gitlow v. New York (1925), p. 165 Dennis v. United States (1951), p. 168 Brandenburg v. Ohio (1969), p. 172 Rankin v. McPherson (1987), p. 181. Monday, March 26: Oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, appealing the Colorado Supreme Court s decision in Craig v. Masterpiece Cakeshop, 370 P.3d 272 (Colo. App. 2015). Wednesday, March 28: Hate Speech Read pp. 220-229 and pp. 240-245, including: Collin v. Smith (1978), p. 220 R.A.V. v. City of St. Paul (1992), p. 223 Wisconsin v. Mitchell (1993), p. 226 Virginia v. Black (2003), p. 240. 6
Friday, March 30: Money as Speech Read pp. 193-197, including: Board of Regents of the University of Wisconsin v. Southworth (2000), p. 193 Citizens United v. Federal Election Commission (2010) to be provided. The First Amendment and Freedom of the Press Congress shall make no law... abridging the freedom... of the press.... Monday, April 2 and Wednesday, April 4: Prior Restraint, Defamation, and Obscenity Read pp. 246-256, pp. 261-263, pp. 294-298, pp. 301-302, and pp. 304-309, including: Burstyn v. Wilson, 343 U.S. 495 (1952), p. 255 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. 261. The First Amendment and Freedom of Assembly Congress shall make no law...abridging...the right of the people peaceably to assemble. Friday, April 6: Freedom of Association and Public Assembly Read pp. 332-336 and pp. 344-357, including: Keyishian v. Board of Regents (New York) (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 Gay, Lesbian, and Bisexual Group of Boston, Inc. (1995), p. 355. 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. Monday, April 9: 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). 7
Wednesday, April 11: The Right to Bear Arms Read pp. 60-74, including: District of Columbia v. Heller (2008), p. 61 McDonald v. Chicago, 561 U.S. 742 (2010) to be provided. 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. Friday, April 13 and Monday, April 16: The Exclusionary Rule Read pp. 361-374 and pp. 399-402, including: Wolf v. Colorado (1949), p. 373 (text at p. 44) Mapp v. Ohio (1961), p. 374 (text at p. 46) Illinois v. Gates (1983), p. 414 Pennsylvania v. Mimms (1977), p. 399 Whren v. United States (1996), p. 402. Wednesday, April 18: Exceptions to the Warrant Requirement Read pp. 384-413, pp. 428-431, and pp. 688-692, including: Olmstead v. United States (1928), p. 688 Katz v. United States (1967), p. 384 Kyllo v. United States (2001), p. 387 Terry v. Ohio (1968), p. 391 Chimel v. California (1969), p. 395 United States v. Mendenhall (1980), p. 405 Georgia v. Randolph (2006), p. 410 Florida v. Bostick (1991), p. 428. 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.... 8
Friday, April 20: Criminal Due Process Read pp. 431-442 and pp. 446-448, 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. 440. Monday, April 23: Oral Argument in Carpenter v. United States, appealing the 6 th Circuit s decision in United States v. Carpenter, 819 F.3d 880 (2016). 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 25 and Friday, April 27: Trial by Jury and Assistance of Counsel Read pp. 443-445 and pp. 448-452, including: Powell v. Alabama (1932), p. 41 Gideon v. Wainwright (1963), p. 445 (referring to p.43) Batson v. Kentucky (1986), p. 448. The Eighth Amendment Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Monday, April 30 and Wednesday, May 2: Cruel and Unusual Punishment Read: pp. 468-499 and pp. 504-523, 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. 9
Friday, May 4: Final Exam Review Session Graduate student papers due. Monday, May 7: 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. Oral Argument (20 percent) Each student will be expected to participate as either an attorney or a Supreme Court Justice for an in-class oral argument in a case previously decided by the United States Supreme Court. Students will prepare 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 do not have a speaking role in a particular case will be asked to complete a written assignment based on that 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. 10
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 deciding one of the three cases presented at oral argument over the course of the semester. Graduate students should make an appointment to discuss their papers with the instructor no later than Monday, April 2, 2018. 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 http://www.wiu.edu/policies/acintegrity.php and a more complete statement of student rights and responsibilities can be found at http://www.wiu.edu/provost/students.php. 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) 298-2512, disability@wiu.edu, or in 143 Memorial Hall. Please notify the instructor as soon as possible to ensure that this course is accessible to you in a timely manner. University values, Title IX, and other federal and state laws prohibit sex discrimination, including sexual assault/misconduct, dating/domestic violence, and stalking. If you, or someone you know, has been the victim of any of these offenses, we encourage you to report this to the Title IX Coordinator at (309) 298-1977 or anonymously at: http://www.wiu.edu/equal_oportunity_and_access/request_form/index.php. If you disclose an incident to a faculty member, the faculty member must notify the Title IX Coordinator. The complete Title IX policy is available at: http://www.wiu.edu/vpas/policies/titleix.php. 11