CIVIL LIBERTIES

Po 334 4 CREDITS SPRING 2006

This course will investigate the relationship between the individual and the state in American politics, primarily as it has been developed through constitutional theory and litigation. Specifically, we will be concerned with two of the fundamental values of American politics, liberty (here defined negatively, as the absence of external constraints upon individual conduct imposed by government), and equality (understood here as the right to full status and to a legitimate share in opportunities for participation in the community). We will test the traditional American understanding of these values, and how they must be related to the need for social order. This will be accomplished through the study of some recent controversies concerning the liberties of thought and expression, of religious conscience and of controversies surrounding discrimination by race, gender or sexual orientation. Because of the special role assumed by the United States Supreme Court in these issues during the past half century, our focus will be largely upon the recent constitutional interpretations offered by that august tribunal. We will also study several philosophical texts and a few academic scribblings that have influenced our thought on these issues.

The following textbook is assigned and should be purchased at the SMC Bookstore:

AMERICAN CONSTITUTIONAL INTERPRETATION, 3rd edition, by Walter Murphy, James Fleming, Stephen Macedo and Sotirios Barber

Some cases omitted from the casebook or decided since publication have been edited by the instructor and placed on a web page for your convenient access. Any case on the web may be accessed from the on-line syllabus (see URL at top). You may read it on-screen, save it to a file for later use, or print a copy.

We will make frequent reference to the fine web site, CONSTITUTIONAL CONFLICTS, maintained by Professor Doug Linder, of the University of Missouri-Kansas City School lf Law. Additional items will be delivered via SMC email, as they arise. These might particularly concern cases currently under consideration before the Supreme Court. Check your email often, as it will be assumed that these have been read. If you use another email account, it is your responsibility to set your SMC account to forward email to your ISP.

Class attendance is mandatory. Students will be permitted a maximum of four (4) unexcused absences. Once this quota has been exceeded, a penalty of one letter grade for each additional unexcused absence will be exacted. Three exams are planned. All SMC policies concerning plagiarism will be enforced. No, it is not constitutionally protected free expression. Nor are cell phones or pagers—turn them off in class.

Should you need to reach me for any reason this semester, my office is in SE 346, or call at 654-2245. I usually check my e-mail in the evening, so if you have a problem or a question about the readings, this is a good way to get in touch with me. I will normally have an answer later that evening or by the next morning.

A syllabus of topics for discussion and specific reading assignments follows. Materials should generally be read in the order presented. Waste no time in beginning, for we have much work to do this semester.

SYLLABUS

I. Introduction to Constitutionalism and the General Problem of Civil Liberties

John Stuart Mill, On Liberty, "Introductory"

Robert Bork, Slouching Toward Gomorrah, ch. 3, “The Rage for liberty and the Pursuit of Happiness,” pg. 56-65 (Library Reserve)

West Virginia v. Barnette, ACI 1275 (mostly consider the facts)

II. "Congress shall make no law...abridging the Freedom of Speech, or of the Press"

A. Background and Values of Free Thought & Expression

ACI 692-701

SYLLABUS

I. Introduction to Constitutionalism and the General Problem of Civil Liberties

II. "Congress shall make no law...abridging the Freedom of Speech, or of the Press"

A. Background and Values of Free Thought & Expression

B. Illegal Advocacy

C. The Two-Level Theory of Free Speech: Obscenity

D. Fighting Words and Offensive Speech

E. Hate Speech

F. Defamation

G. Electronic Media

H. Association for Collective Advocacy

I. Demonstrative Expression, the Public Forum. Limited Public Forum and the Non-Public Forum

J. Symbolic Expression

A. History & Value of the Separation of Church and State

B. The Free Exercise Clause

C. The Establishment Clause

A. Racial Segregation and Discrimination

B. Levels of Judicial Scrutiny

C. The Requirement of Discriminatory Purpose and State Action

D. Affirmative Remedies

E. Gender-based and Sexual Orientation-Based Discrimination