Williams CollegeDepartment of Political Science

CONSTITUTIONAL LAW II: CIVIL LIBERTIES – Fall 2008

Professor: Bernard MooreOffice: Staton Hall, Room 310Office Hours: Mon. 10:00 -11:45, Tues. Phone: 413-595-8000E-mail: bernard.moore@williams.eduWebsite: http://faculty.williams.edu/moore/312/212.htm

OVERIEW

For more than two centuries, the ideals of liberty and equality have stood at the center of American political life. In a brief address at Gettysburg, Abraham Lincoln tells of a nation, “conceived in liberty and dedicated to the proposition that all men are created equal.” For Lincoln, the fate of the nation, then enduring a great civil war, would turn upon” a new birth of freedom” that would insure that “government of the people, by the people, and for the people shall not perish from the earth.” Whether that vision has been fulfilled is today a matter of some contention. For most of the century following the Civil War, America was two nations, one black, one white, separate and unequal. A series of momentous legal, political, and social changes during the second half of the 20th Century, the struggle for true equality continues.

So, too, some see liberty imperiled in a post-9/11 America still gripped by a palpable fear of terrorism. President Bush has said that terrorists attack America because they hat our freedom. His critics charge that his administration has responded to terrorism by curbing our constitutionally protected liberties. Such conflicts have been common in times of war, and civil liberties have never been greater. This combination of law and technology has brought us to a point where what we read, write, and in some ways even what we think, can be readily monitored by the government and private corporations. In short, the fight for freedom has seldom been more pointed.

The focus of this course is the evolution of American civil liberties and civil rights. Grounded in the guarantees of the Bill of Rights and the Fourteenth Amendment to the Constitution, they are largely a function of the decisions of the United States Supreme Court, and the ways it has interpreted enduring principles in the face of profound challenges and changing times. We will trace the development of constitutional law on issues such as: the right to worship and believe as one chooses; the right to be free from government imposing religion on citizens; the right to speak freely; the right to associate with those one chooses; the right to publish and communicate; the right to be free from unreasonable searches and seizures; the right to a fair trial; and the right to be free from discrimination. We will also consider a right with profound

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implications that does not appear anywhere in the Constitution, but that the Court has held is so essential to ordered liberty that it must be recognized: the right to privacy. At the same time, our rights are not unlimited. We will explore the areas where the Court has held that the exercise of one’s rights crosses the boundaries of permissible conduct: when, for instance, speech and press become obscenity and libel; when the free exercise of religion must give way to what the Court has seen as the government’s compelling interest in prosecuting the war on drugs; when efforts to overcome a legacy of discrimination in the past become reverse discrimination in the present, and whether one’s pledge of allegiance under God violates another’s freedom from government establish religion.

Course Objectives:

Learn the current status of evolving constitutional law pertaining to essential civil liberties and rights of the American people, demonstrated by effective participation in various class assignments.

Develop basic analytical and communications skills appropriate to the study of constitutional law and legal reasoning as demonstrated by effective participation in class discussions and various class assignments.

Consider in some detail specific theoretical approaches to critical issues of constitutional rights, especially privacy, expression, and the equal protection of the law as demonstrated by effective performance in various class assignments.

Encourage students to apply the theories and concepts of the academic study of constitutional law to the current political and legal environment as demonstrated by effective contributions to class discussions and performance on in class assignments.

Help students develop their ability to work productively and at a high level with others in a group environment as demonstrated by effective participation in Supreme Court simulations in class.

Course Requirements

In-Class Exams

There are two (45 minute) in-class exams. Exams may consist of a combination of multiple-choice and short answer questions. The material will be drawn directly from the class readings, discussions, lectures, and current events pertaining to civil liberties, civil rights, and the United States Supreme Court as reported in the New York Times and as discussed in class. Exams items will be designed to allow you to demonstrate your deep and detailed mastery of class materials. Students will be able to use briefs and other typed or hand-written notes, which must be turned in

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with the exam upon the professor’s, request (failure to do so when asked will result in a grade of 0).  Students may not use photocopies, texts, or any electronic devices during these exams.  Also, answers should be based on the student’s own reading of the course material, NOT reference web sites or study aides.  Answers that are copied or closely paraphrased from oyez.org, Wikipedia or other such general reference sources are plagiarized and will be subject to punishment consistent with the general policy on plagiarism detailed on p. 4 of this syllabus.

l will allow make-up exams for those students who notify me at least 24 hours in advance of their inability to attend class.  Students who miss an exam due to unforeseen events (e.g., an illness) must notify me as soon as possible after missing class (usually on the same day) and must provide documentation to support their reason for being absent.

Research Paper: Mock Supreme Court

Due: December 3, 2008 in class

Case: TBA

All students will participate in mock Supreme Court exercise, either as a lawyer or a justice. Students must participate in oral arguments, and must a written paper (lawyers submit a legal brief, while justices submit their opinion in the case), which will probably be somewhere in the neighborhood of 10-12 pages. The paper is a research paper, and as such must reflect an understanding of the subject beyond what can be gained from class readings and discussion. It must be original work, reflecting the student’s understanding of the Constitution, arrived at after careful consideration of relevant court cases and legal argumentation.

Oral arguments in each case will last 40 minutes – 20 minutes per side. All students will turn in an annotated bibliography of at least 8 cases (other than the lower court opinions in the instant case) and two other sources (law review articles, secondary sources, etc). The annotate bibliography should contain enough info about each source to make it clear that the student has done the requisite research. It may be typed, or may be photocopies of handwritten notes. Lawyers will provide the justices with an outline of their main points the class period before arguments are scheduled (think of it as briefing your argument – indicate the legal question, the legal doctrine you think should be announced, and the reasoning to support that ruling). Lawyers will make their arguments about how to interpret relevant constitutional provisions and how to apply case law. Justices are encouraged to question the lawyers; raise hypothetical’s about how future courts would apply the standards suggested, etc. Justices will bring written list of questions to class with them, and will turn them in to me following oral arguments as evidence of their preparation.

Immediately following the oral arguments, the justices will conference, each briefly indicating his or her view and likely decision on the case. The Chief Justice will tally the votes. Justices may want to exchange e-mail addresses with one another so they can bounce ideas off one another (or try to convince one another) while they’re writing their final opinions.

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Evaluation criteria

The quality of participation in the oral arguments will be factored into the class participation grade.

The annotated bibliography is worth 20% of the assignment grade. I will grade it based on whether I contains the required number of sources, and the quality, relevance and thoroughness of the research indicated. This paper requires research beyond the few relevant cases that we will read in class, and it requires research indicated. This paper requires research beyond the few relevant cases that we will read in class, and it requires more in-depth knowledge of those cases than you’ll be able to glean from the brief excerpts in our textbook. In other words, the paper requires you to read case law as your primary source material and to read those cases in full (even if we’ve already read excerpts of them in class). There is no reason to cite to the textbook in your final paper. Secondary sources may also help to form your argument or influence your thinking; feel free to consult and cite them where relevant. But as with any collegiate-level work, general reference guides such as broad-based encyclopedias (including Wikipedia) are inappropriate and insufficient to serve as the basis for research. Similarly, papers should not rely on general web-based summaries of cases at sites such as oyez.org.

I will evaluate papers based upon two criteria: 1) Whether the brief/opinion demonstrates an understanding of relevant constitutional provisions and precedents; and, 2) Whether the brief/opinion makes a coherent argument in favor of a particular answer to the legal question(s) posed, using case law to substantiate the legal doctrine announced. Papers must be based upon research from relevant court cases (above and beyond the few relevant cases discussed in class). At a minimum, students should cite 8 cases in writing their papers. Papers that do note cite at least 8 cases will receive a failing grade.

Schedule

Nov. 3, 2008 annotated bibliography dueNov. 10, 2008 Lawyers turn in outlines & Key cases (give to justices, too)Nov. 17, 2008 Oral arguments & conference (Justices turn in list of questions after)Nov. 24, 2008 Final paper due in class

Citation

All citations must follow standard legal formats. Because this is a research paper, your text should not be a source you rely upon in your paper, and hence there should be minimal, if any, cites to your text book. If I see case citations to the E&W test, I will assume it is because you did not do research beyond the text for the paper, and the grade will suffer tremendously. The official reporter for the U.S. Supreme Court is U.S. Reports, but there are many others, including Lawyers’ Edition (L.Ed.), Supreme Court Reporter (Sup. Ct), and services like Lexis, West, and US LawWeek. For simplicity’s sake, citations to US Supreme Court decisions in your papers should refer to the volume and page number in the U.S. Reports, using the standard format citing

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court opinions. Each online service reports US Reports page numbers differently. Lexis, for example, signifies page breaks in US Reports with a number in brackets, preceded by an asterisk. So if you’re reading and see something like this: “provides a federal civil remedy for the [*602] victims of gender-motivated violence…” in indicates that with word “victims, page 602 in US Reports begins. Be careful about this, because when two asterisks precede the number, it’s a page indicator for the Supreme Court reporter, and when three precedes is an indicator for L.Ed. (Don’t yell at me, I didn’t design this procedure). Westlaw follows the same convention with the asterisks, but rather than putting them in brackets, puts them in bold purple text. In FindLaw, pages in the U.S. Reports are indicated by small green type in brackets. For example, in Morrison vs. Olson, 487 U.S. 654 (1988), when “[487 U.S. 654, 660]”, appears in the text in green type, it indicates that the text that follows in on p. 660. I prefer to read court opinions in Westlaw or Findlaw because I find them easier to read, and often references are hyperlinked, allowing you to easily review relevant sources.

Any citations to secondary sources (e.g., law review articles) should be thorough enough so that I can find them, if necessary. The standard way to cite a legal secondary source is vvv LawRevTit ppp, where vvv=volume, “LawRevTit” = standard abbreviation for title of journal, and “ppp” = page number.

In-Class Assignments/Participation

Participating in class is vital to success.  Most classes will be discussion-based, with minimal lecturing by the professor.  Students must be prepared for class and ready to discuss the cases scheduled—coming to class prepared is a must.  Students should brief all cases for discussion each day; if participation is lackluster, the professor may ask students to turn in one or more of their briefs for the day and count completion of those briefs toward the participation grade.

I will keep track of student attendance and participation throughout the semester, and will advise students of their participation grade during roughly the fifth and tenth weeks of the semester.   The class participation grade is based upon attendance and the quality and quantity of contributions to discussions. 

This is a difficult class.  The amount of reading each week varies, but averages around 70 pp. of often complex material.  Most students will find that they have to read each assignment at least twice before class, and may need to review them again after the class discussion.  You should budget at least 3 hours of class preparation for every hour spent in class.  Success in this course will depend upon carefully analyzing the readings, especially the excerpts from Supreme Court opinions.  Students should pay careful attention to the facts of each case, the rules announced in the case, and the legal reasoning behind it.  They should also evaluate the logic of that reasoning, as well as the logic of any concurring or dissenting opinions.  Finally, they will pay attention the progression of doctrine over time, and how those changes coincide with changes in the political or social environments of the nation.

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Over the course of the semester, students will be graded for class participation and completion of various in class assignments. Students who have completed all in-class assignment will also earn additional credit toward their final grade.

Optional Journal/Portfolio

Students can complete a journal/portfolio of entries pertaining to constitutional law, civil liberties and civil rights, based on events and experiences that occur during this semester. Journal/portfolios should consist of copies of articles from the New York Times relevant to concepts in the readings, lectures and other course activities; and typewritten responses of approximately one to two double-spaced pages to each article. Journals will be evaluated in terms of their ability to integrate and extend class concepts in depth and detail. As a general rule, portfolio must include at least seven entries. Up to two entries may relate to conversations or experiences students have had relevant to the course materials. Portfolios should be neat and well organized; unprofessional work will be marked lower. For extra credit toward the final grade may be earned from this assignment. Optional journal/portfolios are due in class on Wednesday, December 1, 2008.

Guidelines for written assignments

All papers shall be typed in the following format: double spaced with 1 inch margins all around, and a 10 or 12 point font, stapled once in the top left hand corner (no binders, folders, etc.). Papers should be printed in a standard font (Arial, Courier, Times, Bookman, etc.) and NOT in any particularly creative fonts (e.g., Comic Sans MS).

All assignments completed outside of class must be carefully edited for spelling and grammar.  Students will get one “free” error per page.  After that, each grammatical or spelling error will result in a 1/3 point deduction from the overall grade. This is a steep price to pay for sloppiness!  Edit your work carefully, and you’ll avoid the problem.  There is no reason for spelling errors in this era of spell checkers.  I have summarized several of the most common grammatical errors to avoid (as well as how to avoid them) at: http://www.uni.edu/~petersc/grammar.html.  I recommend that you look at this page and consider it a guide in “How Not to Annoy Professor Peters.”   UNI maintains a helpful site for grammar questions called Dr. Grammar: http://www.uni.edu/drgrammar/. 

Make-up Assignments

There will be no make-up assignments for unexcused absences. Acceptable excuses (medical or personal emergencies and college-related business) must be provided to the instructor before the assignment is due and in writing to be considered. Students who are unable to complete an assignment for legitimate reasons that do not qualify as excused under college guidelines, and who notify the instructor before the assignment is due, may, at the discretion of the instructor, turn in late assignments for partial credit.

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Penalties for Late Assignments

Assignments turned in on the day they are due but after assignment were collected in class will face five-percent penalty. Each additional late day will accrue an additional ten percent deduction. Electronic submission of assignments will not be accepted except at the discretion of and by the invitation of the instructor.

Electronic Communication:

If you wish to send a message to me please include a recognizable subject line. Doing so allows me to instantly recognize your message as important and distinguishes it from the many messages from strange e-mail addresses that arrive on a daily basis, and facilitates a prompt response from me. If you send me an e-mail message and do not receive a prompt response, please do not hesitate to send a follow-up. While I try to answer each e-mail, it can be easy to accidentally overlook any particular message.

A web page has also been set up for this class. Important course information will be posted there along with links to other relevant web sites. The URL is: TBA

Students are responsible for monitoring and contributing to class electronic communication.

Classroom Etiquette

Students are expected to observe all rules of proper classroom conduct. In order to insure an appropriate environment conducive to learning there are three rules governing behavior in the classroom that you must be aware of:

Use of electronic devices of any kind is not permitted in class. Student with special needs should discuss accommodation with the instructor.

Please refrain from talking, eating, leaving your cell phone ringers on, or other disruptive activity during class. Even one or two conversations quickly create distractions for other students and the instructor.

Please do not leave class early, or get up and leave and come back during class. If you must do so, tell the instructor before hand and arrange to sit near the door so your exit will be less noticeable.

Serious violations of these rules may result in a request that the offending individual(s) leave the classroom. Grading penalties (up to a half-letter grade for first-time offenders and a full letter-grade for recidivists) may be imposed at the discretion of the instructor.

Policy on Academic Ethics and Honesty

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If a student has plagiarized or cheated in a course, the instructor may (in consultation with the Department Chairperson and the Dean) determine that the student be dismissed from the course and given a grade of “F”. The student forfeits all privileges of withdrawal from the course.

Plagiarism is stealing and passing off (the ideas, words, work, themes, reports, drawings, laboratory notes, computer programs or other products of another) as one’s own. In short, it is using a created production without crediting the source. The surest way to avoid plagiarism is to provide proper citation to all works quoted directly or otherwise indirectly borrowed from. Proper citations include the title, date, and author of the work. If you are not familiar with the formatting of bibliographic citations, please consult a writer’s style guide or manual. An excellent online guide to citation can be found on the internet at:

http://www.english.uiuc.edu/cws/wworkshop/bibliostyles.htm

Guides for citing online materials specifically can be found on the web at:

http://webster.comment.edu/apa/apa_online.htm or

http://www.bedfordstmartins.com/online/cite6.html

Cheating includes (but is not limited to) an attempt by one or more students to use unauthorized information in the taking of an exam; or knowingly to assist another student in obtaining or using unauthorized materials. Further specific delineation of academically dishonest behavior can be found in Williams College Student Handbook. If you have any doubts as to whether particular behavior would amount to cheating, please ask the instructor for clarification. Ignorance of the rules is not a valid defense.

Class Meetings:

Class meetings will be comprised of introductory and concluding comments from the instructor, lectures, video presentations, questions and discussions involving the whole class, and vigorous participation by students.

This format places some limits upon formal presentation by the instructor in order to maximize student engagement with the material. One requirement for this format to prove successful is that each student must come to each class prepared. That involves reading, studying, analyzing and often re-reading and re-analyzing materials before class. Inadequate preparation will virtually assure that much of what is said in the class, both by students and by the instructor, will make little sense.

You must also try to resist the temptation to discount the comments of your fellow students. The course is designed to give students the opportunity to articulate key concepts and criticisms. Many, if not most, of the important statements made in the class will be made by students. It is essential that you give the utmost respect to your classmates.

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Also, keep in mind that in no case should any of the comments in the class be taken or directed personally. A college classroom is perhaps the singular place in our society where people gather for the purpose of giving deliberate and reasoned consideration to a wide range of views, including many of great controversy. Indeed, I encourage you to present views you may not necessarily agree with in order to explore and develop relevant themes or issues.’

Textbooks:

There is one required textbook for this course:

Epstein, Lee, and Thomas G. Walker. Constitutional Law for a Changing America: Rights, Liberties and Justice (6th Edition). Washington, D.C. :CQ Press, 2006

Books are available at Water Street Books in Williamstown, MA

Newspaper:Students are also required to read The New York Times for stories pertaining to civil liberties, civil rights and the United States Supreme Court.

Grading:

Your performance will be evaluated upon the following criteria:

Exams (2@10% each) 20% Class Participation 10% Mack Supreme Court 20% Annotated bibliography due 10% Lawyers turn in outlines - Key cases & Oral arguments & conference

((Justices turn in list of questions after) 10% Final paper 30%

Extra Credit:

Optional Journal/Portfolio 10%

Grading criteriaThe criteria I use for grading all written assignments (exams and papers are available at http://www.uni.edu/~petersc/grading.html.

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Grades of “I” will only be assigned when students have fulfilled the bulk of the semester’s assignments, but are prevented from completing assignments at the end of the semester due to sudden and/or traumatic events, such as sudden illness, death of loved one, etc. Before assigning a grade of “I,” the professor will require the student to commit to finishing the work by an agreed-upon time.

Class Schedule

Students are responsible for completing all assignments for discussion on the date indicated below. Cases that the students must brief and include in there are listed below:

Reading and Assignment

Week One: Sept. 8 Introduction to the Bill of Rights & the Civil War Amendments

EW pp. 3-9, 791-801Sept. 10 The U.S. Supreme Court & how to brief cases EW pp. 10-49, 821

Week Two:Sept. 15 The Judiciary: Powers and Constraints

EW pp. 49-70Sept. 17 Incorporation of the Bill of Rights

EW pp. 71-94

First Amendment: Free Speech and Free Press

Week Three:Sept. 22 Free Speech: Limits during times of crisis

EW pp. 210-244Free Speech vs. public standards and order

EW pp. 244-262

Sept. 24 Free Speech, public order and hate speechEW pp. 262-286

Free Press: Prior RestraintEW pp. 314-347

Week Four:Sept. 28 Free Speech and expressive association

EW pp. 286-295, 307-312http://clca.cqpress.com/rights/hurley.htm

Limits of free speech and press: Obscenity

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EW pp. 347-380

Oct. 1 Limits of free speech and press: LibelEW pp. 380-401

First Amendment: Religion

Week Five:Oct. 6 The Free Exercise Clause

EW pp. 99-107

Oct. 8 Free Exercise during the Warren and Burger CourtsEW pp. 107-124http://clca.cqpress.com/rights/minersville.htm

Week Six:

Oct. 13 Free Exercise during the Rehnquist CourtEW pp. 124-138http://clca.cqpress.com/rights/church.htm

Guest Lecturer: Hon. Consuelo B. Marshall, Judge United States District Court, Central District of California

Exam 1 (45 Minutes)

Oct. 15 Establishment of Religion: Aid to religious schoolsEW pp. 138-160

Establishment of Religion: School vouchers and other aid to religious schoolsEW pp. 160-187http://clca.cqpress.com/rights/locke.htm

Week Seven:

Oct. 20 Religious teaching in public schoolsEW pp. 187-213http://www.clca.cqress.com/rights/lambschapel.htm

The Right to PrivacyOct. 22 Abortion

EW pp. 412-450

Week Eight:

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Oct. 27 Privacy: Other applications of GriswoldEW pp. 450-470

The Rights of the Accused

Oct. 29 Search & seizure requirementsEW pp. 475-507

Guest Lecturer: Hon. Alexander Williams, Judge United States District Court, District of Maryland

Week Nine:

Nov. 3 Fourth & Fifth Amendments: Exclusionary Rule & Self-IncriminationEW pp. 507-547

Nov. 5 The Eighth Amendment and Cruel & Unusual PunishmentEW pp. 581-601

Civil RightsWeek Ten:

Nov. 10 Racial Discrimination – School desegregationEW pp. 626-642

Nov. 12 Racial Discrimination – School desegregation & the state action doctrineEW pp. 642-660

Week Eleven:

Nov. 17 Sex Discrimination: A middle level of scrutinyEW pp. 660-686

Nov. 19 Remedies for Discrimination: Affirmative ActionEW pp. 706-736

Guest Lecturer: Hon. Sandra Day O’Connor, Associate Justice (Retired) Supreme Court of the United States

Week Twelve:Nov. 24 Exam (45 min.)

Guest Lecturer: Keen Keller, Counsel, U.S. House of Representatives, Committee on Judiciary

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Nov. 26 College Holiday

Mock Supreme CourtWeek Thirteen:

Dec. 1 Mock Supreme Court 1

Dec. 3 Mock Supreme Court 2

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