Instructor: Brendon Swedlow Political Science (POLS) 411 firstname.lastname@example.org Constitutional Law II
Office: 418 Zulauf Hall DU 246 MW 2-3:15
Hours: MW 1-1:50 NIU Fall 2004
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 pay particular attention to how the U.S. Supreme Court has interpreted these constitutional provisions protecting liberty and equality.
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 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, assisted suicide, and sodomy.
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, genders, and sexual orientations differently. Among other topics, these cases consider the constitutionality of segregated public schools; of affirmative action in public schools, hiring, and contracting; and of prohibitions on interracial marriages and home purchases by minorities.
As we read, discuss, and learn to apply these cases, we
will also read and discuss other cases and readings that focus on how the Court
gains and maintains the power to give meaning to constitutional provisions.
Throughout the course, we will identify the pros and cons and consider the
successes and limitations of these judicial exercises of power in the
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. Two books are required. They 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 in electronic reserves. No outside reading or research is required. The books are:
Geoffrey R. Stone, et al., Constitutional Law
(4th edition) (
· John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).
February 11 Midterm #1 (15%) Take-home, can be jointly authored; six pages; due
following Wednesday, February 18, at beginning of class
March 24 Midterm #2 (25%) Take-home; must be your own work; six pages; due
following Wednesday, March 31, at beginning of class
May 3 Final (40%) In-class; open book, open note; but no sharing of
materials or discussion during exam; Monday,
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 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.
Credit: Serving as a Witness or Juror in
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 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
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
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.
JUDICIAL STRUCTURE, ORIGINS OF JUDICIAL REVIEW, AND HOW TO BRIEF A CASE
Federalist #10 and #51 (CL, pp. 7-20).
Introduction to Substantive Due Process (CL, pp. 710-13).
The Lochner-era cases (CL, 724-28).
Demise of the Lochner-era cases (CL, 728-32).
(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)
Chapter One, Democracy and Distrust
Roe v. Wade (1973) (CL, pp. 823-29) (right of privacy – abortion).
The Abortion Regulation Cases (CL, pp. 842-50).
Chapter Two, Democracy and Distrust
The Abortion Funding Cases (CL, pp. 835-42).
Chapter Three, Democracy and Distrust
Planned Parenthood v. Casey (1992) (CL, pp. 850-70)
(liberty right – abortion).
Bowers v. Hardwick (1986) (CL, 896-904)
(right of privacy – sodomy).
(right of liberty and privacy – sodomy).
Chapter Four, Democracy and Distrust
NOTE: MIDTERM #1 HANDED OUT AT END OF CLASS ON
WEDNESDAY, FEBRUARY 11TH
WEEK 6 MODERN SUBSTANTIVE DUE PROCESS
Cruzan v. Missouri Department of Public Health (1990) (CL, pp. 904-11) (liberty interest – refusing life support).
(liberty interest – assisted suicide).
Youngberg v. Romeo (1982) (Reserve) (liberty interest – rights to care, safety, and training of institutionalized mentally retarded).
Chapter Five, Democracy and Distrust
NOTE: MIDTERM #1 DUE AT BEGINNING OF CLASS ON
WEDNESDAY, FEBRUARY 18TH
Lochner, “From Folly to Farce” (Reserve).
Bass, Taming the Storm (Reserve).
Chapter Six, Democracy and Distrust
Tribe, “The Puzzling Persistence of Process-Based Constitutional Theories” (Reserve).
WEEK 8 EQUAL PROTECTION—SCHOOL DESEGREGATION IN THE SOUTH AND NORTH
(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).
McCann, “Reform Litigation on Trial” (Reserve).
Feeley, “Hollow Hopes, Flypaper, and Metaphors” (Reserve).
EQUAL PROTECTION—RATIONAL BASIS REVIEW
NYTA v. Beezer (1979) (CL, pp. 475-78)
(subway refuses to employ methadone users).
Various RBT cases (CL, pp. 484-86).
(city refuses to permit home for mentally retarded).
EQUAL PROTECTION—RACE. RACE-SPECIFIC
CLASSIFICATIONS THAT DISADVANTAGE MINORITIES
(military orders internment of Japanese on West Coast during WWII).
Shelly v. Kramer (1948) (Reserve) (judicial enforcement of contracts restricting sale of homes to minorities).
EQUAL PROTECTION—RACE. RACE-SPECIFIC
CLASSIFICATIONS THAT ARE FACIALLY NEUTRAL
NOTE: MIDTERM #2 HANDED OUT AT END OF CLASS ON
WEDNESDAY, MARCH 24TH
v. Regents of the
(U.C. Davis medical school sets aside 16 seats for minority applicants).
Grutter v. Bollinger (2003) (Reserve) (U. of
race “as a factor” in admissions).
Gratz v. Bollinger (2003) (Reserve) (
liberal arts gives “bonus points” to minorities in admissions).
Fullilove v. Klutznick (1980) (Reserve) (Congress requires10 percent of federal funds spent on local public works to go to minority contractors).
Adarand v. Pena (1995) (CL, pp. 574-94) (Federal highway construction programs provide additional compensation to contractors who hire subcontractors controlled by “socially and economically disadvantage individuals”).
NOTE: MIDTERM #2 DUE AT BEGINNING OF CLASS ON
WEDNESDAY, MARCH 31ST
Reed v. Reed (1971) (CL, p. 598) (
Craig v. Boren (1976) (CL, pp. 602-10) (
Michael M. v.
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).
WEEK 14 EQUAL PROTECTION—GENDER
(All male military school – VMI -- wants to stay that way).
EQUAL PROTECTION—SEXUAL ORIENTATION
Steffan v. Perry (D.C. Circuit 1994) (Reserve) (Navy discharges sailor after he admits homosexual orientation but not conduct).
Romer v. Evans (1996) (CL, pp. 638-57) (
WEEK 15 THE RIGHT TO AN EDUCATION
v. Doe (1982) (CL, pp. 804-10) (
Heise, “State Constitutional Litigation, Education Finance, and Legal
Impact: An Empirical Analysis” (Reserve).
Heise, “State Constitutions, School Finance Litigation, and the ‘Third
WEEK 16 COURSE CONCLUSION
Our schedule for WEEK 15 will inevitably get pushed up into this week as
we take time throughout the semester to discuss cases, go over your
midterms, and prepare for the final.