Instructor: Brendon Swedlow Political Science (POLS) 411

bswedlow@niu.edu Constitutional Law II

Office: 418 Zulauf Hall DU 246 MW 2-3:15

Hours: MW 1-1:50 NIU Fall 2004

Phone: 753-7061

Constitutional Law, Substantive Due Process, and Equal Protection

Course Description

The 14^th Amendment to the U.S. Constitution guarantees that we cannot be deprived of “life, liberty, or property without due process of law” and mandates “equal protection of the laws.” In this course, we will focus on how the U.S. Supreme Court has defined the liberty and equality referenced in these constitutional clauses.

In the first part of the course, we will read major Court cases that give substantive meaning to the term “liberty”. These cases read a “liberty to contract” into and then out of the 14^th Amendment’s due process clause and expand, retract, and redirect a “right to privacy” the Court discovers in this clause and other Bill of Rights amendments. Among other things, these latter cases set limits on the regulation of contraception, abortion, suicide, and sodomy; and on the restraint of prisoners and other institutionalized people.

In the second part of the course, we will focus on cases defining what “equal protection of the laws” means with respect to laws that treat races and men and women differently. The racial cases assess the constitutionality of segregated public schools; of affirmative action in public schools, hiring, and contracting; of racial disparities in administration of the death penalty; of race-based internments during wartime; and of prohibitions on whites marrying or selling their homes to minorities.

The gender cases determine the constitutionality of laws that make male survivors the administrators of estates; set different beer buying ages for men and women; punish men but not women for having heterosexual intercourse with minors; require men to prove financial dependence on their wives to receive governmental benefits; presume women earn less than men early in their careers; and exclude women from military academies.

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.

One book is required: Geoffrey R. Stone, et al., Constitutional Law (4^th edition) (New York: Aspen Publishing, 2001). It can be purchased at the NIU student center or checked out on a short-term basis (2 hour reserve) from Founder’s library, where additional readings are also on reserve, both in hard copy and electronically. (I will give you the URL in class.) No outside reading or research is required.

Exam Schedule

September 20 Midterm #1 (15%) Take-home, can be jointly authored; six pages; due

following Mon., Sept. 27^th, at beginning of class

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

following Mon., November 1^st, at beginning of class

December 6 Final (40%) In-class; open book, open note; but no sharing of

materials or discussion during exam; Monday, 2-3:50 p.m.

Bring your own blue books.

Participation (20%) See next section 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 several 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.

Serving as a Witness or Juror in NIU Law School Mock Trials

There may be an opportunity for you to serve as a witness or juror in mock trials that function as final exams for students of NIU law school’s courses in trial advocacy. The availability of this opportunity will depend on the needs of the law school faculty who teach these courses and on how many public law students wish to serve as witnesses or jurors.

I encourage all of you to serve as a witness or juror and will give you extra credit for serving and even for observing these mock trials – an opportunity that should be available to everyone.

Other Opportunities to Participate and/or to Receive Extra Credit

At various points during the semester, I may announce other opportunities to improve your class participation grade and/or to receive extra credit.

These may include leading class discussion of cases, arguing for and against the constitutionality of state action in cases we have read or in hypothetical cases we discuss, or creating hypothetical cases for the class to argue or discuss. These opportunities may also include analyzing law related events on campus, in the community, or in the media.

I am open to your suggestions for additional opportunities to participate and/or to receive extra credit in the course.

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.”

Department of Political Science Announcements

Undergraduate Writing Awards

The Department of Political Science will recognize, on an annual basis, outstanding undergraduate papers written in conjunction with 300-400 level political science courses or directed studies. Authors do not have to be political science majors or have a particular class standing. Winners are expected to attend the Department’s spring graduation ceremony where they will receive a certificate and $50.00. Papers, which can be submitted by students or faculty, must be supplied in triplicate to a department secretary by February 28. All copies should have two cover pages – one with the student’s name and one without the student’s name. Only papers written in the previous calendar year can be considered for the award. However, papers completed in the current spring semester are eligible for the following year’s competition even if the student has graduated.

Statement Concerning Students with Disabilities

Under Section 504 of the Rehabilitation Act of 1973, NIU is committed to making reasonable accommodations for persons with documented disabilities. Those students with disabilities that may have some impact on their coursework and for which they may require accommodations should notify the Center for Access-Ability Resources (CAAR) on the fourth floor of the Health Services Building. CAAR will assist students in making appropriate accommodations with course instructors. It is important that CAAR and instructors be informed of any disability-related needs during the first two weeks of the semester.

Department of Political Science Web Site

Undergraduates are strongly encouraged to consult the Department of Political Science web site on a regular basis. This up-to-date, central source of information will assist students in contacting faculty and staff, reviewing course requirements and syllabi, exploring graduate study, researching career options, tracking department events, and accessing important details related to undergraduate programs and activities. To reach the site, go to http://polisci.niu.edu

Reading Assignments and Lecture Topics

WEEK 1 INTRODUCTION AND COURSE OVERVIEW

HISTORICAL BACKGROUND AND BRIEFING CASES

Substantive Due Process

WEEK 2 THE INCORPORATION DEBATE AND

ECONOMIC SUBSTANTIVE DUE PROCESS

The Slaughterhouse Cases (1873) (CL, pp. 692-702)

(privileges and immunities -- butchers).

NOTE: NO CLASS WEDS., SEPTEMBER 1, LABOR DAY

WEEK 3 ECONOMIC AND MODERN SUBSTANTIVE DUE PROCESS

Introduction to Substantive Due Process (CL, pp. 710-13).

Lochner v. New York (1905) (CL, pp. 713-24) (liberty of contract -- bakers).

The Lochner-era cases (CL, 724-28).

Demise of the Lochner-era cases (CL, 728-32).

WEEK 4 MODERN SUBSTANTIVE DUE PROCESS

Griswold v. Connecticut (1965) (CL, pp. 811-19)

(right of privacy – married use of contraceptives).

Eisenstadt v. Baird, et al (1972) (CL, pp. 819-23) (right of privacy – distribution of contraceptives to unmarried people)

Roe v. Wade (1973) (CL, pp. 823-29) (right of privacy – abortion).

WEEK 5 MODERN SUBSTANTIVE DUE PROCESS

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

MONDAY, SEPTEMBER 20^TH

The Abortion Regulation Cases (CL, pp. 842-50).

The Abortion Funding Cases (CL, pp. 835-42).

Planned Parenthood v. Casey (1992) (CL, pp. 850-70)

(liberty right – abortion).

WEEK 6 MODERN SUBSTANTIVE DUE PROCESS

NOTE: MIDTERM #1 DUE AT BEGINNING OF CLASS ON

MONDAY, SEPTEMBER 27^TH

Bowers v. Hardwick (1986) (CL, 896-904)

(right of privacy – sodomy).

Lawrence v. Texas (2003) (Reserve).

(right of liberty and privacy – sodomy).

WEEK 7 MODERN SUBSTANTIVE DUE PROCESS

Cruzan v. Missouri Department of Public Health (1990) (CL, pp. 904-11) (liberty interest – refusing life support).

Washington v. Glucksberg (1997) (CL, 911-20)

(liberty interest – assisted suicide).

WEEK 8 MODERN SUBSTANTIVE DUE PROCESS

Youngberg v. Romeo (1982) (Reserve) (liberty interest – rights to care,

safety, and training of institutionalized mentally retarded).

Washington v. Harper (1990) (Reserve) (liberty interest – prisoner’s right to refuse anti-psychotic medication).

“Equal Protection of the Laws”

WEEK 9 EQUAL PROTECTION—SCHOOL DESEGREGATION

Plessy v. Ferguson (1896) (CL, pp. 437-40)

(racially separate but equal train compartments).

Brown I and Brown II (1954 and 1956) (CL, pp. 446-56)

(racially separate schools not equal).

Southern Desegregation Cases (CL, pp. 456-61).

Northern Desegregation Cases (CL, pp. 461-71).

WEEK 10 EQUAL PROTECTION—RATIONAL BASIS REVIEW

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

MON., OCTOBER 25^TH

NYTA v. Beazer (1979) (CL, pp. 475-78)

(subway refuses to employ methadone users).

Various RBT cases (CL, pp. 484-86).

City of Cleburne v. Cleburne Living Center (1985) (CL, pp. 488-90)

(city refuses to permit home for mentally retarded).

EQUAL PROTECTION—RACE. RACE-SPECIFIC

CLASSIFICATIONS THAT DISADVANTAGE MINORITIES

Korematsu v. United States (1944) (CL, pp. 501-05)

(military orders internment of Japanese on West Coast during WWII).

Shelley v. Kramer (1948) (Reserve) (judicial enforcement of contracts restricting sale of homes to minorities).

WEEK 11 EQUAL PROTECTION—RACE. NON-RACE-SPECIFIC

CLASSIFICATIONS THAT DISADVANTAGE MINORITES

NOTE: MIDTERM #2 DUE AT BEGINNING OF CLASS ON

MON., NOVEMBER 1^ST

Washington v. Davis (1976) (CL, pp. 514-17) (Black applicants to D.C. police department fail qualifying test at higher rate than whites).

Various cases (CL, pp. 519-23).

McClesky v. Kemp (1987) (CL, pp. 523-28) (Georgia blacks who murder whites get death penalty at higher rate than whites murdering anyone).

EQUAL PROTECTION—RACE. RACE-SPECIFIC

CLASSIFICATIONS THAT ARE FACIALLY NEUTRAL

Loving v. Virginia (1967) (CL, pp. 533-35) (Virginia prohibits white and black intermarriage).

WEEK 12 EQUAL PROTECTION—RACE. RACE-SPECIFIC

CLASSIFICATIONS THAT BENEFIT MINORITIES

Bakke v. Regents of the University of California (1978) (Reserve)

(U.C. Davis medical school sets aside 16 seats for minority applicants).

Grutter v. Bollinger (2003) (Reserve) (U. of Michigan law school uses

race “as a factor” in admissions).

Gratz v. Bollinger (2003) (Reserve) (U. of Michigan undergrad college of

liberal arts gives “bonus points” to minorities in admissions).

WEEK 13 EQUAL PROTECTION—RACE. RACE-SPECIFIC

CLASSIFICATIONS THAT BENEFIT MINORITIES

Fullilove v. Klutznick (1980) (Reserve) (Congress requires10 percent of federal funds spent on local public works to go to minority contractors).

City of Richmond v. Croson (1989) (CL, pp. 557-74) (Virginia city requires prime contractors to subcontract 30 percent of their city business to minority businesses).

Adarand v. Pena (1995) (CL, pp. 574-94) (Federal highway construction programs provide additional funds to contractors who hire subcontractors controlled by “socially and economically disadvantage individuals”).

WEEK 14 EQUAL PROTECTION--GENDER

Reed v. Reed (1971) (CL, p. 598) (Idaho gives male survivors the right to administer estates).

Frontiero v. Richardson (1973) (CL, pp. 598-600) (Federal law permits male members of armed services to claim wives as dependents without proving dependency).

Craig v. Boren (1976) (CL, pp. 602-10) (Oklahoma prohibits 3.2% beer sales to men under 21 and women under 18).

NOTE: NO CLASS WEDS., NOVEMBER 24^TH; THANKSGIVING BREAK

WEEK 15 EQUAL PROTECTION--GENDER

Michael M. v. Sonoma (1981) (Reserve) (California prohibits males but not females from having sex with minors outside of marriage).

Califano v. Goldfarb (1977) (CL, pp. 627-32) (Social Security benefits are automatically payable to widows of beneficiary while widowers have to prove dependency).

Califano v. Webster (1977) (CL, pp. 632-37) (Social Security Act allows women to exclude more of their lower wage earning years than men in calculating retirement benefits).

U.S. v. Virginia (1996) (CL, pp. 611-24)

(All male military school – VMI -- wants to stay that way).

NOTE: FINAL EXAM, MON., DECEMBER 6^TH, 2-3:50 P.M. GOOD LUCK!