Professor 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 2005                                    

Phone: 753-7061                                                                                             

 

 

 

Liberty, Privacy, and Equality in Constitutional Law

 

 

 

Course Description

 

The 14th 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 learn 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 U.S. Supreme Court cases that give substantive meaning to the term “liberty”. These cases read a “liberty to contract” into and then out of the 14th 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 limit the regulation of contraception, abortion, suicide, and sodomy.

 

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

 

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; prohibit males from having sex with girls outside of marriage; require men to prove financial dependence on their wives to receive governmental benefits; 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 (5th edition) (New York: Aspen Publishing, 2005). It can be purchased at the Holmes 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 19    Midterm #1  (15%)  Take-home, can be jointly authored; six pages; due

following Mon., Sept. 26th, at beginning of class

 

October 24        Midterm #2  (25%)  Take-home; must be your own work; six pages; due

following Mon., October 31st, at beginning of class

 

December 5       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 constitutionally 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.

 

Oral Argument and Class Participation

 

Periodically, I will ask you to act as lawyers, arguing constitutional cases before judicial appellate panels composed of your fellow students. Your performance in these roles will contribute significantly to your participation grade.

 

Lawyers will consist of teams of two students each. Judicial panels will be composed of five to seven students each. Judges will have the opportunity to question counsel before discussing and voting on the case.

 

Oral argument will consist of opening statements by lawyers for both sides, followed by closing arguments/rebuttals by co-counsel. Argument will focus on constitutional not factual or other legal issues in the cases.

 

You will be given advance notice of which cases we will be arguing in class, and who will be acting as lawyers and judges. This will allow counsel to prepare their arguments and judges to prepare their questions.

 

Counsel and judges will use majority, concurring, and dissenting opinions in our cases to re-create the arguments and questions that occurred during oral argument. Each attorney will have 3-5 minutes to make his or her argument, for a total of 12-15 minutes of argument.

 

For some cases, the briefs filed by parties are available online and can also be used to prepare your arguments and questions.

 

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 opportunities may include analyzing law related events on campus, in the community, country, or world. For example, unless the U.S. Senate delays confirmation hearings, this semester we will learn whether President George Bush’s nomination of Federal Appellate Judge John Roberts to replace retiring U.S. Supreme Court Justice Sandra Day O’Connor is successful. You could watch some of the confirmation hearings on television and report on what you saw.

 

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

 

                        THE INCORPORATION DEBATE AND

ECONOMIC SUBSTANTIVE DUE PROCESS

 

The Slaughterhouse Cases (1873) (725-733)

(privileges and immunities – butchers).

 

 

WEEK 2        ECONOMIC AND MODERN SUBSTANTIVE DUE PROCESS

 

Introduction to Substantive Due Process (741-745).

 

Lochner v. New York (1905) (745-755) (liberty of contract – bakers).

 

The Lochner-era cases (755-761).

 

Demise of the Lochner-era cases (761-768).

 

 

WEEK 3        MODERN SUBSTANTIVE DUE PROCESS

 

NOTE:           NO CLASS MONDAY, SEPTEMBER 5TH, LABOR DAY

 

Griswold v. Connecticut (1965) (845-853)

(right of privacy – married use of contraceptives).

 

Eisenstadt v. Baird, et al (1972) (853-857) (right of privacy – distribution of contraceptives to unmarried people)

 

 

WEEK 4        MODERN SUBSTANTIVE DUE PROCESS

 

Roe v. Wade (1973) (857-863) (right of privacy – abortion).

 

The Abortion Regulation Cases (877-880).

 

The Abortion Funding Cases (873-877).

 

                        Planned Parenthood v. Casey (1992) (884-903)

(liberty right – abortion).

 

 

WEEK 5        MODERN SUBSTANTIVE DUE PROCESS

 

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

            MONDAY, SEPTEMBER 19TH

 

Bowers v. Hardwick (1986) (930-935)

(right of privacy – sodomy).

 

                        Lawrence v. Texas (2003) (935-948).

                        (right of liberty and privacy – sodomy).

 

                        Homosexuality, Sexual Liberty, and Substantive Due Process (948-949).

 

WEEK 6        MODERN SUBSTANTIVE DUE PROCESS

 

NOTE:           MIDTERM #1 DUE AT BEGINNING OF CLASS ON

                        MONDAY, SEPTEMBER 26TH

 

Cruzan v. Missouri Department of Public Health (1990) (950-957)

(liberty interest – refusing life support).

 

Washington v. Glucksberg (1997) (957-965)

(liberty interest – assisted suicide).

 

WEEK 7         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 8         EQUAL PROTECTION—SCHOOL DESEGREGATION

 

                        Plessy v. Ferguson (1896) (464-467)

(racially separate but equal train compartments).

 

                        Brown I and Brown II (1954 and 1956) (473-483)

(racially separate schools not equal).

 

                        Southern Desegregation Cases (483-488).

 

WEEK 9         Northern Desegregation Cases (488-497).

 

 

                            EQUAL PROTECTION—RATIONAL BASIS REVIEW

 

                        NYTA v. Beazer (1979) (502-504)

(subway refuses to employ methadone users).

 

                        Permissable Government Purposes (507-511).

 

“Actual Purpose” Review (512-516).

 

The Means-Ends Nexus (516-523).                

 

WEEK 10       EQUAL PROTECTION—RACE. RACE-SPECIFIC

CLASSIFICATIONS THAT DISADVANTAGE MINORITIES

 

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

                        MON., OCTOBER 24TH

                       

Korematsu v. United States (1944) (525-529)

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

 

Shelley v. Kraemer (1948) (Reserve) (judicial enforcement of contracts prohibiting re-sale of homes to non-whites).

 

 

 

 

 

 

                       

EQUAL PROTECTION—RACE. NON-RACE-SPECIFIC

CLASSIFICATIONS THAT DISADVANTAGE MINORITES  

 

Washington v. Davis (1976) (546-549) (Black applicants to D.C. police department fail qualifying test at higher rate than whites).

 

Rational Basis Review of Non-Race-Specific Classifications (549-558).

 

What Constitutes a Racially Motivated Classification? (558-566). 

 

WEEK 11       Problems in Administration of Criminal Justice (567-569).   

 

McClesky v. Kemp (1987) (569-573) (Georgia blacks who murder

                       whites get death penalty at higher rate than whites murdering anyone).

 

                        Racial Disparities in Investigating, Charging, and Sentencing (573-576).

 

NOTE:           MIDTERM #2 DUE AT BEGINNING OF CLASS ON

                        MON., OCTOBER 31ST

 

                               

EQUAL PROTECTION—RACE.  RACE-SPECIFIC

CLASSIFICATIONS THAT ARE FACIALLY NEUTRAL

 

Loving v. Virginia (1967) (529-531) (Virginia prohibits marriage of whites with non-whites).

 

Johnson v. California (2005) (Reserve) (California racially segregates prisoners).

 

 

                        EQUAL PROTECTION—RACE. RACE-SPECIFIC
CLASSIFICATIONS THAT BENEFIT MINORITIES – SCHOOLS

 

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

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

 

WEEK 12       Grutter v. Bollinger (2003) (594-606) (U. of Michigan law school uses

race “as a factor” in admissions).

 

Application of Strict Scrutiny (606-608).

 

                        Gratz v. Bollinger (2003) (608-611) (U. of Michigan undergrad college of

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

 
 

 

WEEK 13      EQUAL PROTECTION—RACE. RACE-SPECIFIC
CLASSIFICATIONS THAT BENEFIT MINORITIES – PUBLIC CONTRACTING

 

Fullilove v. Klutznick (1980) (594-606; opinion also on reserve)

(Congress requires10 percent of federal funds spent on local public works to go to minority contractors).

 

City of Richmond v. Croson (1989) (578-581) (Virginia city requires prime contractors to subcontract 30 percent of their city business to minority businesses).

 

Adarand v. Pena (1995) (581-589) (Federal highway construction programs provide additional funds to contractors who hire subcontractors controlled by “socially and economically disadvantaged individuals”).

 

Constitutionality of “Benign” Racial Classifications (589-594).

 

                        EQUAL PROTECTION--GENDER

                       

                        Early Cases (622-623).

 

Reed v. Reed (1971) (624) (Idaho gives male survivors the right to administer estates).

 

Frontiero v. Richardson (1973) (624-626) (Federal law permits male members of armed services to claim wives as dependents without proving dependency).

 

WEEK 14      From Reed to Craig v. Boren (626-629).

 

Craig v. Boren (1976) (629-634) (Oklahoma prohibits 3.2% beer

                        sales to men under 21 and women under 18).

 

                        Heightened Scrutiny for Gender Classifications? (634-639).

 

Michael M. v. Sonoma (1981) (Reserve) (California prohibits males from                 

having sex with girls outside of marriage).

 

                        Archaic and Overbroad Generalizations v. “Real” Differences (639-640).

 

NOTE:            NO CLASS WEDS., NOVEMBER 23rd; THANKSGIVING BREAK

 

                        

 

 

WEEK 15      EQUAL PROTECTION--GENDER

 

The Relevance of “Real Differences” (654-658).

 

Califano v. Goldfarb (1977) (658-661) (Social Security benefits are

                        automatically payable to widows of beneficiary while widowers have to                         

                        prove dependency).

 

Califano v. Webster (1977) (661-662) (Social Security Act allows women to exclude more of their lower wage earning years than men in calculating retirement benefits).

 

The Problem of “Benign” Gender Classifications (662-665).

 

                        U.S. v. Virginia (1996) (640-647).

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

 

“Real Differences” and Formal Equality (647-650).

 

WEEK 16       FINALS

 

NOTE:            FINAL EXAM, MON., DECEMBER 5TH, 2-3:50 P.M. GOOD LUCK!