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Spring 2001
Volume 00, Number 2

Newsletter on Philosophy and the Black Experience

Course Syllabi

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CONSTITUTIONAL LAW II
Civil Rights and Civil Liberties
Pols 306

Steven A. Light
University of North Dakota Faculty of Political Science
and Public Administration

e-mail: steven_light@und.nodak.edu

COURSE DESCRIPTION

From this nation's inception to the present, Americans have debated politics, policy, and institutional issues. The United States Constitution is the foundational document that creates and limits governmental powers. The Bill of Rights, the first ten amendments to the Constitution, sets forth certain values government must guarantee (civil rights), as well as certain protections against government infringement (civil liberties). All government action, whether federal, state, or local, must comply with the Constitution. But who decides whether a government action is constitutional, and how? Beyond merely interpreting the Constitution, the Supreme Court plays a unique role in setting the terms of political discourse and framing political and legal outcomes. Law enforcement and correctional officers must understand the Court's interpretations of rights and liberties, for courts have held that they may be liable for failing to protect or to enforce them.

This course introduces students to the constitutional system of the United States and the modes of thought and criticism appropriate to assessing constitutional law in the political context. It will provide a broad introduction to the Court's civil rights and civil liberties decisions to ascertain the political values and processes it has defended historically, the standards it has developed to implement its principles, and its relationship to other institutions in the American political system. The course will focus on three major themes of constitutional law: the role of the Supreme Court ("judicial review"), civil rights (rights guaranteed by government), and civil liberties (protections from government intrusion).

The course will illuminate how the Supreme Court makes public policy through constitutional interpretation, focusing on decisions germane to law enforcement and criminal justice. By emphasizing the social and political variables that affect constitutional interpretation, and how political scientists study constitutional outcomes, the course will address what American government does, who benefits, and who loses out. By the course's end, students will be able to situate constitutional law and discourse within broad understandings of democracy in the American context, and will have furthered their ability to think clearly and critically about current events.

REQUIRED READINGS

Lee Epstein & Thomas G. Walker, Constitutional Law For A Changing America: Institutional Powers And Constraints (4th ed. 2001)
In the syllabus, "EW" refers to the casebook. In addition to the required text and supplement, I occasionally will hand out supplementary readings in class designed to contextualize a particular topic or to suggest a problem for class discussion. The complete text of many cases also is available online at http://supct.law.cornell.edu/supct/ (Cornell's Legal Information Institute) or http://supreme.findlaw.com/Supreme_Court/decisions.html (Findlaw Law Center).
You also are expected to pay attention to current events. Online newspapers are available without charge. The two best for political coverage are the New York Times, found at http://www.nytimes.com/, and the Washington Post, found at http://www.washingtonpost.com/.

CLASS FORMAT

We will be thinking critically about the Constitution, the Supreme Court, and American politics and government. Such analysis requires close reading of case law, command of fact, holdings, and legal doctrine, and formulation of cogent arguments supporting or critiquing constitutional interpretations. Relevant information will be conveyed to you not only through the assigned readings and lecture, but through class discussion, which includes not only my questions and comments, but your classmates' answers and questions as well. Interaction is required and the clash of ideas is encouraged. Class participation is expected and preparation is assumed. It is imperative that you come to class prepared by completing the assigned reading and thinking about what you've read prior to class. I suggest that you take the time to brief the cases included in the assigned reading. (Attached to the syllabus is advice on briefing cases.) This course's teaching approach will differ from that of many other courses, and will challenge you. In order for you to rise to the challenge and excel, you must read the assignments on time and attend class regularly.

To facilitate challenging and effective class discussion, and to allow each of you to shine, I will assign students to a "participation group." Each participation group will be responsible for a particular topic and will lead the class discussion on that particular topic. Although all students are expected to prepare for and participate in each class, members of the participation group will be expected to summarize the assigned topics for the class, suggest questions to pose to the class, and be the "first responders" to my questions. I suggest that each participation group meet and discuss its assigned topic prior to the class sessions covering the topic, in order to analyze the cases and issues and to anticipate questions.

COURSE REQUIREMENTS AND EVALUATION TOOLS

There will be three in-class exams, each worth 40 points, and a final exam, also worth 40 points. Exams will consist of essay questions modeled on those found in this syllabus.
This course fundamentally is driven by your participation. You will be assigned to a "Participation Group" during one particular segment of the course. As part of the Group, each student is expected to be familiar with all cases and be ready to serve as "first responders" during class discussion. This is worth 30 points. During the rest of the semester, you are expected to complete the assigned reading prior to its coverage in class, and to be prepared to be called on to discuss all case law. These additional responsibilities will be worth 10 points. Frequent absenteeism and a lack of preparation will be noted, and can count against your participation score.

Those who fail to complete assignments on time due to a lack of preparation will be penalized on appropriate make-up materials by ten percent for each day late. Serious medical problems and family emergencies are excepted only with sufficient advance notification and documentation. Penalties for academic dishonesty will conform to University guidelines.

Points will be assigned as follows:
Test 1: 40 points
Test 2: 40 points
Test 3: 40 points
Test 4 (final exam): 40 points
Presentation Group: 30 points
Semester participation: 10 points
Total: 200 points

The grading scale will be subject to deviation from a standard 90-80-70-60 scale based on the instructor's prerogative in ascertaining relative individual and class performance.

COURSE OUTLINE

I. Introduction: The Supreme Court and the Constitution

In 1787, Congress called for a convention to revise the Articles of Confederation and ended up framing a new national charter: the Constitution, which was ratified on the condition that the first Congress would propose a Bill of Rights. The first ten amendments to the Constitution set forth certain values government must guarantee (civil rights), as well as certain protections against government infringement (civil liberties). Law enforcement and correctional officers must understand these civil rights and civil liberties, for courts have held that they may be liable for failing to protect or to enforce them.

Think about: How did the Constitution come about? The Bill of Rights? How is it that these founding documents are flexible enough to provide the framework for government today? How do civil liberties differ from civil rights? What responsibilities does government have for protecting and preserving each? Why must law enforcement officers be familiar with the text of the Bill of Rights, as well as its contemporary interpretations?

II. The Judiciary: Institutional Powers and Constraints

The Constitution only provides for "one supreme court," giving Congress the power to create other courts as it deemed necessary. The federal court system as we know it is like a pyramid, with district courts at the base, appellate courts in the middle, and the Supreme Court at the apex. Judicial review, the most powerful tool of the federal courts, is not mentioned in the Constitution, yet in Marbury v. Madison, the Court invoked judicial review to strike down legislation it deemed incompatible with the Constitution. The Bill of Rights originally applied only to the national government; over time, the Court used the Fourteenth Amendment to guarantee that states would protect rights and liberties.

Think about: What role does the Supreme Court play in American government? What role should it play? How does judicial review mediate that role? How do the justices make decisions? Do they leave their beliefs at the courthouse door when they don their black robes? How did the Bill of Rights come to apply to the states, not just the national government?

III. Civil Liberties: The First Amendment and Regulating Freedom of Speech, Assembly, and Association

TEST 1

Parts I - III

The First Amendment appears to provide a bright-line standard guaranteeing that government cannot restrict the four components of expression: speech, press, assembly, and petition. Yet the Supreme Court never has held that such liberties are absolute. A focus on issues of anti-war and anti-abortion protests, internal flag burning, restrictions on hate speech, obscenity, and libel demonstrates the degree to which the First Amendment flexes with societal changes.

Think about: Is it possible to develop a universal standard concerning what is offensive? How are freedoms of assembly and association tied to freedom of speech? How have political protests changed America? Whom does hate speech target, individuals or groups? How would you define "obscenity" and "libel"? How far can government go in regulating speech without imposing a "chilling effect" on freedom of expression?

IV. Civil Rights: The Rights of the Criminally Accused

TEST 2

Part IV

Four of the first eight amendments guarantee rights for the criminally accused. Many students in this course will seek careers in law enforcement or corrections; however, it is important to recall that most Americans will at some point be exposed to the criminal justice system, for widely divergent reasons. The state - that is, government - wields enormous power in the field of law enforcement. Protections against that power are imperative for the innocent and the guilty alike. Law enforcement officers must understand constitutional guarantees and procedural rules in order to act without violating them because the consequences for themselves, criminals, victims, the innocent, and society itself can be enormous.

Think about: What is state power? What is "criminal justice" and what are the many components of the criminal justice system? What is the significance of discretion for the various actors in the system? How do judicial interpretations of the law set the terms of criminal procedures? What is a reasonable balance between effective law enforcement and the rights of the accused? Why must law enforcement officers be aware of the significance of race and ethnicity in America?

V. Civil Liberties: The Second Amendment and the Right to Keep and Bear Arms

The Second Amendment's wording gives rise to (at least) two possible interpretations, one of which emphasizes the individual right to keep and bear arms and one of which emphasizes the collective right of the states to arm their militias. The Supreme Court has issued one authoritative decision concerning the Second Amendment that takes the latter tack, and has been extremely reluctant to revisit it. Scholars, gun control organizations, police associations, the National Rifle Association, state and local lawmakers, and many citizens remain highly polarized over the issue of guns, gun violence, and gun control.

Think about: What are the two possible interpretations of the Second Amendment? Which should control? Why hasn't the Supreme Court been more involved in the debate? Is there a possible compromise over a "right?" What role do interest groups play in shaping the terms of the political debate over the Second Amendment? Who should decide the future of gun control: the states? Congress? Interest groups? The courts? The American people?

VI. Civil Rights: The Right to Privacy

TEST 3

Parts V - VI

A right to privacy is not specifically spelled out in the Constitution or the Bill of Rights. The Supreme Court has extended the concept of liberty from government intrusion and the individual's "right to be let alone" primarily through the penumbras, or shadows, of the First, Third, Fourth, Fifth, and Ninth Amendments. Most controversial have been the moves to guarantee reproductive freedom and questions of personal autonomy, such as sexual freedom and the right to die.

Think about: Why do you expect the right to privacy? Is there a point or a particular policy issue where the government has the right to invade your zone of privacy? In whose interest? Has public opinion changed over the years concerning the rights encompassed in privacy? Has the Supreme Court responded to such changes, or reflected them? Can changes in the Court's composition effectively "end" a right, such as the right to an abortion, or are rights inherent in individuals?

VII. Civil Rights: Categorical Discrimination and Equal Protection

The Constitution is not "colorblind." The Fourteenth Amendment's guarantee of "the equal protection of the laws" has never been interpreted to forbid all discrimination. The degree to which it precludes racial discrimination has been contested in political struggles within the Supreme Court, and mirrored throughout America, over the historical quest for equality. Challenges to discrimination based on gender and sexual orientation also illustrate the degree to which true equality is more mythical than real.

Think about: Why do civil rights often depend on shared characteristics, whereas civil liberties focus on individual personal freedoms? How and why is the history of racial discrimination so important to understanding current debates over the best way to bring about equality? What are the three basic tests of the Equal Protection Clause, and how does is their use based on group categories? How and why have women, gays and lesbians, and other social groups used equal protection litigation to try to bring about social change? In what policy areas have they succeeded? Failed?

I. Civil Rights: Remedying Categorical Discrimination

Eliminating and correcting for governmental discrimination sometimes requires complex remedies that seem to stretch the bounds of equal protection. Few public policies are as controversial and as misunderstood as are affirmative action programs, which have brought about important social changes for women as much as people of color. The Supreme Court's jumbling of affirmative action law may soon be clarified by a changing Court; in any case, many states are implementing new forms of "affirmative access" policies or eliminating affirmative action on their own. Remedies for racial discrimination in voting and representation also are changing based on the Court's recent voting rights jurisprudence.

Think about: What are the myths and realities of affirmative action? What roles have the courts played in shaping affirmative action policy? How will conflicts over affirmative action ultimately be resolved? How has equal protection come to be so important in thinking about voting rights and the representation of people of color in government? What do the Court's recent decisions and the 2000 Census portend for litigation over race-based districting?

IX. Expanding Ideas of Law and Legal Institutions

TEST 4 (FINAL EXAM)

Parts VII - IX

Although the Constitution's original words remain the same, the Supreme Court's interpretation of those words has been extraordinarily fluid. The Founders could not have anticipated the economic, political, and cultural changes that have shaped America, nor could they have foreseen the degree to which political contestation among the various institutions of government has resulted. The law, as debated, enacted, and implemented by policymakers, as well as the legal institutions that have interpreted or mediated the law's meanings, have both affected and been affected by social change. This is the "constitutive" significance of law: it creates and is created by the actions of people. It may be easier to see these processes if we view the law through different lenses. Perspectives derived from thinking about what rights and liberties mean to people with differing backgrounds allow us to understand why the law is so important.

Think about: How does a "supreme court" jibe with a system of democratic accountability? Are all people represented by political institutions? What if we viewed the law through different lenses than those usually employed by policy makers or legal scholars? How would society differ if women, people of color, gays and lesbians, or the poor were in charge of lawmaking and interpreting the law?

ON BRIEFING CASES

One of the most commonly asked questions at the start of a constitutional law course is, "How do I prepare for class?" While there is no one "right" way to prepare for class, you should first think in terms of commanding the knowledge necessary to participate in class discussions. This basically means pretending that you are going to be quizzed on the facts of the case, the arguments deployed by the parties, the legal analysis employed by the Court (including legal precedent and doctrines), and what the Court held. This is called "briefing" a case - which gives rise to another commonly asked question: "How do I brief a case?"

Unfortunately, there also is no perfect way to brief a case. You have to develop your own techniques and strategies, and in part, that comes with practice. Here are some basic suggestions:

• What is the title and citation of the case at hand? Use legal citation form (e.g., Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803)).
  
  
• What is the background and what are the facts in the case? For example, who are the parties involved in the litigation? (Who brought suit against whom?) Under what statute was the claim litigated (or is it a direct constitutional claim)? What other factual history can you bring to bear (i.e., what did the lower courts hold, and what did the parties do before they brought suit?)
  
  
• What is the legal question presented; that is, what are the issues? Keep in mind that there usually is more than one, and that the Court itself may not always address the most important ones. The justices speaking for the majority may be looking at entirely different questions than may those speaking in concurring opinions, or for the dissent. Revisit what you have identified as the pertinent questions when you discuss the Court's holding.
  
  
• What is the holding? What did the majority actually decide on behalf of the Court? Did it address all of the parties' arguments? If not, why not? If the opinion is not unanimous, make sure you understand where and why the opinions differ. Look to the concurrences and the dissents. Remember that five Justices make a majority, and anything less is not binding on the lower courts; moreover, today's dissent might be tomorrow's majority opinion.
  
  
• What is the legal reasoning? That is, what are the arguments contained in the opinion for the Court? The Court tells you its decision, but teasing out the arguments will help you understand how and why it reached that outcome. Don't forget to think about what arguments were not made, for those, too, may be quite informative.
  
  
• What do the separate opinions (concurring or dissenting) emphasize?
  
  
• What are the loose ends? What is left out of the opinion? What is the legal or historical or political significance of the case? What will the next case addressing similar issues tell us?
  

In determining the answers to these questions, you will engage with larger questions of precedent (prior controlling cases), legal standards and doctrine (often ideologically developed and applied), institutional constraints (i.e., the nature of courts and litigation and the differences between individual judicial behavior and that of the entire Court), and predictability (i.e., in what direction is the Court heading on a given issue?)

Ideally, you should be able to brief a case in less than one page. Do not expect to nail all of these questions down for every case, particularly as our textbook often does not present all of the tools necessary to answer all of the above questions. (Most cases in the text are presented in truncated form.) As you move through the semester, you can revisit and revise your earlier briefs in order to streamline and improve them.

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