Instructor: Brendon Swedlow

bswedlow@niu.edu

 

Political Science (POLS) 412                                                                           Constitutional Law III

Office: 418 Zulauf Hall                                                                                      MW 6:00-7:15

Hours: MW  4:50-5:50                                                                                     NIU Fall 2003                                    

Phone: 753-7061                                                                                            

 

 

Constitutional Law and Civil Liberties

 

 

 

Course Description

 

This course covers major United States Supreme Court cases interpreting First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment limitations on state power over individuals. Cases in the first part of the course define how state agents must act when searching for and seizing evidence of suspected criminal activity, and how they must treat those they detain, arrest, question, prosecute, and punish. Cases in the second part of the course define the extent to which states may restrict freedom of speech in the interests of national security and public order.

 

Course Requirements

 

Your grade in this course will be based on class participation, two take-home midterms, and an in-class final. Class participation will determine a significant part of your grade (20%) and is further described on the next page.  The midterms and final will consist of hypothetical fact-patterns that I will ask you to analyze in terms of the cases we have been reading. Take-home midterm answers should be six pages in length, double-spaced, with 12 point type. If you want, the first midterm answer can be jointly authored with one other person from this class. The final is open-book, open-note.  A course-reader can be purchased at the NIU student center or checked out on a short-term basis (2 hour reserve) from Founder’s library. No outside reading or research is required.

 

Exam Schedule

 

September 17   Midterm #1  (15%)  Take-home, can be jointly authored; six pages; due

following Wednesday, September 24, at beginning of class

 

October 15       Midterm #2  (25%)  Take-home; must be your own work; six pages; due

following Wednesday, October 22, at beginning of class

 

December 8      Final             (40%)  In-class; open book, open note; but no sharing of

materials or discussion during exam; 6:00-7:50 p.m.

 

Participation                          (20%)  See following page for further explanation

 

 

Briefing Cases, Study Groups, the Socratic Method, and Class Participation

 

We will read and discuss many judicial opinions in this course. I will teach you how to read these cases so that you can extract their legally relevant aspects. This specialized form of note-taking is called “briefing cases.” Law students often form study groups to brief and discuss cases. I encourage you to do the same.

 

In class, I will do very little lecturing. Instead, I will ask you questions about your readings, particularly about the cases you have read. Your case briefs will be essential to answering these questions. This questioning approach to teaching is called the Socratic Method, and is the most common teaching style used in law schools.

 

Every day that we meet I will select one or more of you from the enrollment roster to answer questions about the readings. If you are here and prepared to answer those questions, you will receive credit for participating in class discussion that day. If you are absent or unprepared, you will receive no credit that day. In computing your participation grade, I will discard up to three instances where you were absent or unprepared when I called on you. If you are unprepared, please just say you want to “pass” on answering questions that day.

 

Other Course Requirements

 

Please do not…

·        ask for extensions on turning in your midterms. Midterms will be graded down one third of a grade per day that they are late.

·        ask to take make-up exams or an incomplete in the course unless you have a very, very compelling reason to do so.

Definitely do not…

·        engage in “academic misconduct,” defined by the NIU Student Judicial Code as the “receipt or transmission of unauthorized aid on assignments or examinations, plagiarism, unauthorized use of examination materials, or other forms of dishonesty in academic matters.”

 

 

 

 

 

 

 

 

 

 

 

 

Reading Assignments and Lecture Topics

 

WEEK 1        INTRODUCTION AND COURSE OVERVIEW

 

David O’Brien, “The Politics of Constitutional Interpretation,” Constitutional Law and Politics (Little, Brown, and Company, 1991), 70-94.

 

Jesse Choper, “The Current Justices of the U.S. Supreme Court: Their Philosophies, Ideologies, and Values,” and Kathleen Sullivan, “Commentary,” Bulletin of the American Academy of Arts and Sciences (September/October 1997), 54-71.

 

David O’Brien, “The Selective Nationalization of Guarantees of the Bill of Rights,” Constitutional Law and Politics, 277-86.

 

Bill of Rights and 14th Amendment

 

Reading a Supreme Court Decision

 

Palko v. Connecticut (1937) (double jeopardy in state courts)

 

Fourth Amendment Searches and Seizures

 

 

NOTE:  NO CLASS MONDAY, SEPTEMBER 1, LABOR DAY

 

 

WEEK 2        POLICE POWER, CRIME CONTROL, AND CIVIL LIBERTIES

 

Jim Carlton, “The Trade-Off: Project Residents Gain Freedom from Crime, but Pay Price in Rights; At Geneva Towers, Drugs, Gangs Are Replaced by Searches, Surveillance; The Beefy ‘Beijing’ Guards,” The Wall Street Journal, April 26, 1994, A1.

 

David Rudovsky, “The Criminal Justice System and the Role of the Police,” The Politics of Law, David Kairys, ed., (Pantheon Books, 1982), 242-52.

 

Samuel Walker, “Searches, Seizures, and Interrogations,” Taming the

System (Oxford University Press, 1993), 44-51.

 

James Q. Wilson and George L. Kelling, “Broken Windows: The Police and Neighborhood Safety,” The Atlantic Monthly, March 1982, 29-38.

 

Samuel Walker, “Arrest Discretion, Generally,” Taming the System, 39-41.

Fred Inbow, et al, “Outline of Criminal Procedure,” Criminal Law and Its Administration, 5th ed., (The Foundation Press, 1990), 1-15.

 

                       THE EXCLUSIONARY RULE

 

Malcolm Feeley and Samuel  Krislov, “Searches, Seizures, and the Warrant Requirement,” Constitutional Law, 2nd edition, (Scott, Foresman/Little, Brown, and Company, 1990), 555-69.

 

Akhil Reed Amar, The Constitution and Criminal Procedure (Yale University Press, 1997), 1, 3-13, 16-24, 31-35, 37-44; as excerpted in Civil Rights and Civil Liberties, David O’Brien, ed., (Lanahan Publishers, 1999), 137-58.

 

Mapp v. Ohio (1962) (exclusion of unconstitutionally obtained evidence)

 

WEEK 3        THE WARRANT REQUIREMENT

 

Payton v. N.Y. (1980) (homes)

 

Steagald v. U.S. (1981) (homes)

 

Wilson v. Arkansas (1995) (“knock and announce”)

 

Schneckloth v. Bustamente (1973) (consent exception)

 

Ohio v. Robinette (1996) (consent exception)

 

“Entry of Building for Caretaking” (Bute, Rohrig, Wood, Dull)

 

Illinois v. Gates (1983) (probable cause for warrants)

 

WEEK 4        SEARCHES INCIDENT TO ARREST OR INVESTIGATORY STOP

 

Phillip Johnson, “Introductory Commentary,” Cases and Materials on Criminal Procedure, (West Publishing, 1988), 200-4. (Robinson, Sibron, Adams)

 

Terry v. Ohio (1968) (“stop and frisk”)

 

Maryland v. Wilson (1997) (search of auto passenger)

 

U.S. v. Holloman (1997) (search after traffic violation)

 

Chimel v. California (1969) (search after arrest)

California v. Hodari (1991) (reasonable suspicion)

 

Phillip Johnson, “Note on Flight to Evade Officers”

 

Florida v. Bostick (1991) (random sweeps)

 

“Illegal Searches Used in Illinois, Suit Alleges,” New York Times, September 9, 1994, Section 1, 9.

 

David A. Harris, “The Use of Traffic Stops Against African Americans: What Can Be Done?,” Congressional Black Caucus Annual Legislative Conference, September 18, 1998.

 

NOTE:           MIDTERM #1 HANDED OUT AT END OF CLASS ON   

           WEDNESDAY, SEPTEMBER 17

 

WEEK 5        RESTRICTING THE EXCLUSIONARY RULE

 

H. L. Pohlman, “The Exclusionary Rule: United States v. Leon,” Constitutional Debate in Action (Harper Collins, 1995), 189-212.

 

U.S. v. Leon (1984) (“good faith” exception)

 

Craig Bradley, The Failure of the Criminal Procedure Revolution (University of Pennsylvania Press, 1993), 37-41, 45, 48-51.

 

            SURVEILLANCE AND PRIVACY

 

                        Katz v. U.S. (1967) (electronic listening devices)

 

                        U.S. v. White (1971) (surreptitious recording)

 

                        California v. Greenwood (1988) (garbage)

 

                                U.S. v. Myers (1995) (thermal imaging)

 

NOTE:           MIDTERM #1 DUE AT BEGINNING OF CLASS ON

                        WEDNESDAY, SEPTEMBER 24

 

WEEK 6       SEARCHES IN THE ADMINISTRATIVE STATE

 

                        Camara v. Municipal Court (1967) (regulatory searches)

 

                        New Jersey v. TLO (1985) (school search)

 

                        People v. Dilworth (1996) (school search)

 

                        Wyman v. James (1971) (welfare search)

 

                        Skinner v. Railway Labor Executives (1989) (drug testing)

 

                        Michigan Department of State v. Sitz (1990) (roadway checkpoints)

                       

Vernonia School District v. Action (1995) (drug testing in school)

 

 

Sixth Amendment Right to Counsel

 
WEEK 7         Caleb Foote, “Vagrancy-type Law and its Administration,” from W.

Chamblis, Crime and the Legal Process (McGraw-Hill, 1969), 295-300.

 

Malcolm Feeley and Samuel Krislov, “The Right to Counsel,” Constitutional Law, 2nd edition, 617-19.

 

Anthony Lewis, Gideon’s Trumpet (New York: Random House, 1964), 3-10, 44-45, 48, 55, 62-63, 168-70, 173, 185, 187, 223, 226, 237; as excerpted in Civil Rights and Civil Liberties, David O’Brien, ed., 177-83.

 

Gideon v. Wainwright (1963) (right to counsel in state courts)

 

Randy Bellows, “Notes of a Public Defender,” from Philip B. Heyman and Lance Liebman, The Social Responsibilities of Lawyers (The Foundation Press, 1988), 69-83.

 

Fifth Amendment Right Against Self-Incrimination

 

 

            David Simon, Homicide: A Year on the Killing Streets ( Houghton Mifflin,

1991), 193-203; as excerpted in Civil Rights and Civil Liberties, David O’Brien, ed., 169-76.

 

Malcolm Feeley and Samuel Krislov, “Confessions and Self-

Incrimination,” Constitutional Law, 2nd edition, 617-19.

 

Peter Irons and Stephanie Guitton, “Oral Argument in Miranda v. Arizona,” May It Please the Court (The New Press, 1993), 213-22.

Miranda v. Arizona (1966) (informed self-incrimination)

 

Albert W. Alschuler, “A Peculiar Privilege in Historical Perspective: The Right to Remain Silent,” 94 Michigan Law Review, 2625-28, 2631-38 (1996).

 

William E. Schmidt, “Silence May Speak Against the Accused in Britain,” New York Times, November 11, 1994, A17.

 

WEEK 8        Rhode Island v. Innis (1980) (non-interrogative police methods)

 

                        Colorado v. Connelly (1986) (waiver)

 

                        State v. Cayward (1989) (trick interrogation)

 

Roger Parloff, “False Confessions,” American Lawyer (May, 1993), 58-62.

 

                        New York v. Quarles (1984) (public safety exception)

 

Craig Bradley, The Failure of the Criminal Procedure Revolution, 52-59.

 

Phillip Johnson, “A Statutory Replacement for the Miranda Doctrine,” Criminal Procedure, 595-606.

 

NOTE:           MIDTERM #2 HANDED OUT AT END OF CLASS ON   

           WEDNESDAY, OCTOBER 15

 

Eighth and Fourteenth Amendment Rights Against Cruel, Unusual, and Other Punishments

 

WEEK 9        “Half of Freed Killers Served Only Six Years,” The San Francisco

Chronicle, July 8, 1985.

 

“American Survey: The Politics of Death,” The Economist, March 24, 1990, 25-26.

 

Stanley Rothman and Stephen Powers, “Execution by Quota?,” The Public Interest, (Summer, 1994), 3-17.

 

David O’Brien, “Recent Rulings of the Rehnquist Court on Capital Punishment,” Supreme Court Watch – 1996 (W.W. Norton and Company, 1996), 211-15.

 

David O’Brien, “Recent Rulings of the Rehnquist Court on Capital Punishment,” Constitutional Law and Politics, Volume II: Civil Rights and Civil Liberties (Little, Brown and Company, 1991), 222-25.

 

Malcolm Feeley and Samuel Krislov, “Punishment and Fairness,” Constitutional Law, 2nd edition, 651-55.

 

                        Furman v. Georgia (1972) (arbitrary is cruel and unusual)

 

                        Gregg v. Georgia (1976) (per se not cruel and unusual)

 

                        McCleskey v. Kemp (1987) (race and capital punishment)

 

NOTE:           MIDTERM #2 DUE AT BEGINNING OF CLASS ON

                        WEDNESDAY, OCTOBER 22

 

WEEK 10       Booth v. Maryland (1987) (victim impact statement)

 

                        Payne v. Tennessee (1991) (victim impact statement)

 

                        Callins v. Collins (1994) (Blackmun and Scalia dissents)

 

                        Harmelin v. Michigan (1991) (disproportionate punishment)

 

First Amendment Rights to Free Speech

 

National Security and Political Dissent

 

                        INTERPRETING THE FIRST AMENDMENT   

 

Geoffrey Stone, et al, “Freedom of Expression,” Constitutional Law (Little, Brown, and Company, 1991), 1011-24.

 

Geoffrey Stone, et al, “Expression that Induces Unlawful Conduct,” Constitutional Law, 1025-26.

 

Geoffrey Stone, et al,  Overbreadth and Vagueness: Gooding v. Wilson,” Constitutional Law, 1121-30.

 

Geoffrey Stone, et al,  “From Dennis to Brandenburg,” Constitutional Law, 980-87.

 

WEEK 11      ADVOCACY OF REVOLUTION

                       

Masses Publishing v. Patten (1917) (“direct incitement to violence”)

 

                        Schenck v. U.S. (1919) (“clear and present danger”)

 

                        Whitney v. California (1927) (organizing to advocate violence)

 

                        Dennis v. U.S. (1951) (“conspiracy creates the danger”)

 

                                Brandenburg v. Ohio (1969) (“imminent lawless action likely”)

 

WEEK 12      ORGANIZATIONAL LOYALTY AND FREEDOM OF SPEECH

 

                        Parker v. Levy (1974) (Army captain denounces Vietnam war)

 

                        Pickering v. Board of Education (1968) (teacher criticizes school board)

 

                                Rust v. Sullivan (1991) (family planning clinic and free speech of doctors)

                       

Public Order and Free Speech

 

                        INDIVIDUAL SPEAKERS AND HOSTILE AUDIENCES

 

                        Terminillo v. Chicago (1949) (fascist to anti-fascists)

 

                        Cantwell v. Connecticut (1949) (Jehovah’s Witnesses criticize Catholics)

 

                        Feiner v. N.Y. (1951) (white-bashing speaker)

 

WEEK 13      MASS DEMONSTRATIONS AND HOSTILE AUDIENCES

 

                        Edwards v. South Carolina (1963) (civil rights march)

 

Peter Irons and Stephanie Guitton, “Oral Argument in Cox v. Louisiana,” May It Please the Court, 105-120. (civil rights march)

 

                                Gregory v. Chicago (1969) (civil rights march)

 

                        THE “PUBLIC FORUM” DOCTRINE

 

Geoffrey Stone, et al, “The Public Forum: Streets and Parks” and “Regulating the Public Forum,” Constitutional Law, 1177-83.

 

Adderly v. Florida (1966) (civil rights march on jail)

 

Frisby v. Schultz (1989) (“focused picketing” in residential area)

 

WEEK 14       International Society of Krishna Consciousness v. Lee (1992) (airport)

 

City of Ladue v. Gilleo (1994) (residential signs)

 

Madsen v. Women’s Health Care Center (1994) (abortion clinic picketing)

 

 

WEEK 15       OFFENSIVE SPEECH

 

                        Chaplinsky v. New Hampshire (1942) (“fighting words”)

 

                        Cohen v. California (1971) (“fuck the draft”)

 

                        Geoffrey Stone, et al, “Fighting Words,” Constitutional Law, 1098-1100.

 

                        Beauharnais v. Illinois (1952) (group libel)

 

Peter Irons and Stephanie Guitton, “Oral Argument in Texas v. Johnson,” May It Please the Court, 151-65. (flag burning)

 

                        HATE SPEECH

 

Ira Eisenberg, “Fighting Words: Race and Free Speech at the University of California,” and Charles Lawrence and Gerald Gunther, “Is There Ever a Good Reason to Restrict Free Speech on a College Campus?,” This World, The San Francisco Chronicle, (September 9, 1990), 8-16.

 

Sarah Lubman, “Judicially Suspect: Campus Speech Codes are Being Shot Down as Opponents Pipe Up,” The Wall Street Journal, December 22, 1993.

 

Marc Hardie, “Living Hell: The Price of Dissent,” The Defender, January 1995, 9.

 

H.L. Pohlman, “Hate Speech: R.A.V. v. St. Paul,” Constitutional Debate

in Action, 212-37.

 

R.A.V. v. St. Paul (1993) (cross burning)

 

Wisconsin v. Mitchell (1993) (racial hate speech and criminal sentencing)

 

 

December 8   FINAL EXAM, Monday, 6:00-7:50 p.m.  GOOD LUCK!