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.






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


John Stuart Mill, On Liberty, chapter II

Robert Bork, Slouching Toward Gomorrah, ch. 8, “The Case for Censorship”, pg. 140-153 (Library Reserve)


B.  Illegal Advocacy


Whitney v. California, ACI 713


Dennis v. United States, ACI 719

Konigsburg v. California, dissent of Justice Black


Brandenburg v. Ohio, ACI 728

Hit Man  Read the Prologue and some of chapter 2.  Evaluate the book’s status under the first amendment illegal advocacy doctrine, as applied to these pages?

United States v. Rahman  

Rust v. Sullivan, ACI 788





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



Miller v. California

The Case of Robert Mapplethorpe

Interview with Catherine MacKinnon (discussion of pornography only)

Rise of a Feminist Censor

American Booksellers Association v. Hudnut, ACI 767

R. v. Butler (Supreme Court of Canada)


D. Fighting Words and Offensive Speech


Chaplinsky v. New Hampshire, ACI 733

Cohen v. California, ACI 762



E. Hate Speech


Beauharnais v. Illinois, ACI 736

Overview of Hate Speech Controversy

Charles Lawrence, “If He Hollers, Let Him Go,” in Words that Wound (library reserve)

ACLU: Hate Speech on Campus


R.A.V. v. St. Paul, ACI 742


F. Defamation



New York Times v. Sullivan, ACI 704

British Libel Law


G. Electronic Media


Jack Balkin, Remarks Before the FCC  


FCC v. Pacifica Foundation

Reno v. ACLU



H. Association for Collective Advocacy


ACI 796-805

NAACP v. Alabama, ACI 847

Roberts v. United States Jaycees, ACI 8853

Boy Scouts of America v. Dale, ACI 863



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



Feiner v, New York

Frisby v. Schultz

Hill v. Colorado

Linder and Again


J. Symbolic Expression



United States v. O'Brien, ACI 775

United States v. Eichman, ACI 780





III. "Congress Shall make no law Respecting an Establishment of Religion, nor Prohibiting the free Exercise thereof"


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


ACI 1247-1259


B. The Free Exercise Clause



Davis v. Beason, ACI 1263

Wisconsin v. Yoder, ACI 1283

Thomas v. Review Board, ACI 1291

Employment Division v. Smith, ACI 1298

The Religious Freedom Restoration Act, ACI 1311


C. The Establishment Clause



Everson v. New Jersey

Lemon v. Kurtzman

Lee v. Weisman, ACI 179

Linder and Again

Lynch v. Donnelly

Elk Grove v. Newdow (syllabus only)

Christian Legal Society v. Hastings Law School



IV. "Nor shall any State...deny to any Person Within it jurisdiction the Equal Protection of the Laws"


ACI 895-904

When is Discrimination Wrong? (distributed)


A. Racial Segregation and Discrimination


ACI 906-917

Strauder v. West Virginia, ACI 919

Yick Wo v. Hopkins, ACI 923

Plessey v. Ferguson, ACI 926


Brown v. Board of Education, ACI 936

Bolling v. Sharp, ACI 941

Brown v. Board of Education, ACI 943


B. Levels of Judicial Scrutiny


Linder and Again

Williamson v. Lee Optical, ACI 932

Loving v. Virginia, ACI 948


C. The Requirement of Discriminatory Purpose and State Action


ACI 952-955

Linder and Again

Washington v. Davis


D. Affirmative Remedies



Bakke v. Board of Regents, ACI 942

Grutter v. Bollinger, ACI 984


E. Gender-based and Sexual Orientation-Based Discrimination


ACI 1005-1019

Frontiero v. Richardson, ACI 1022

Craig v. Boren, ACI 1027


United States v. Virginia, ACI 1033

Perry v. Schwarzenegger, Opening Statement

Baker v. State, ACI 1076




FINAL EXAMINATION (and tearful farewell)