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.
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)
Virginia v. Barnette, ACI 1275 (mostly consider the facts)
John Stuart Mill, On Liberty, chapter II
Robert Bork, Slouching Toward Gomorrah, ch. 8, “The Case for Censorship”, pg. 140-153 (Library Reserve)
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
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)
Chaplinsky v. New Hampshire, ACI 733
Cohen v. California, ACI 762
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
New York Times v. Sullivan, ACI 704
British Libel Law
Jack Balkin, Remarks Before the FCC
FCC v. Pacifica Foundation
Reno v. ACLU
NAACP v. Alabama, ACI 847
Roberts v. United States Jaycees, ACI 8853
Boy Scouts of America v. Dale, ACI 863
Feiner v, New York
Frisby v. Schultz
Hill v. Colorado
Linder and Again
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"
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
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"
When is Discrimination Wrong? (distributed)
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
Linder and Again
Williamson v. Lee Optical, ACI 932
Loving v. Virginia, ACI 948
Linder and Again
Washington v. Davis
Bakke v. Board of Regents, ACI 942
Grutter v. Bollinger, ACI 984
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)