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 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 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 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 U.S. political system.

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. 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 (4^th edition) (New York: Aspen Publishing, 2001).

· John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980).

Exam Schedule

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, 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 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.

For Extra Credit: 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 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 29, 2004. 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 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

JUDICIAL STRUCTURE, ORIGINS OF JUDICIAL REVIEW, AND HOW TO BRIEF A CASE

Federalist #10 and #51 (CL, pp. 7-20).

Marbury v. Madison (1803) (CL, pp.22-35) (judicial supremacy).

McCulloch v. Maryland (1819) (CL, pp. 55-69) (sources of judicial authority).

Substantive Due Process

NOTE: NO CLASS MONDAY, JAN. 19, MARTIN LUTHER KING DAY

WEEK 2 THE INCORPORATION DEBATE AND

ECONOMIC SUBSTANTIVE DUE PROCESS

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

(privileges and immunities -- butchers).

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

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

WEEK 3 ECONOMIC AND MODERN SUBSTANTIVE DUE PROCESS

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

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

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

(right of privacy – married use of contraceptives).

WEEK 4 MODERN SUBSTANTIVE DUE PROCESS

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

WEEK 5 MODERN SUBSTANTIVE DUE PROCESS

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).

Lawrence v. Texas (2003) (Reserve).

(right of liberty and privacy – sodomy).

Chapter Four, Democracy and Distrust

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

WEDNESDAY, FEBRUARY 11^TH

WEEK 6 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).

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 18^TH

WEEK 7 MODERN SUBSTANTIVE DUE PROCESS AND

POLITICAL PROCESS THEORY AND ITS CRITICS

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

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).

Equal Protection of the Laws

WEEK 8 EQUAL PROTECTION—SCHOOL DESEGREGATION IN THE SOUTH AND NORTH

Plessey 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 9 NO CLASS MARCH 6-14^TH, SPRING BREAK

WEEK 10 EQUAL PROTECTION—THE EFFICACY OF SCHOOL

DESEGREGATION

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 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).

Shelly 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

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).

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

WEDNESDAY, MARCH 24^TH

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).

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 compensation to contractors who hire subcontractors controlled by “socially and economically disadvantage individuals”).

NOTE: MIDTERM #2 DUE AT BEGINNING OF CLASS ON

WEDNESDAY, MARCH 31^ST

WEEK 13 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).

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).

WEEK 14 EQUAL PROTECTION—GENDER

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

(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).

Watkins v. United States Army (Ninth Circuit 1990) (Reserve) (Army discharges “admitted homosexual” after 14 years of exemplary soldiering).

Romer v. Evans (1996) (CL, pp. 638-57) (Colorado constitutional amendment overrides local ordinances protecting/privileging gays and lesbians).

WEEK 15 THE RIGHT TO AN EDUCATION

San Antonio School District v. Rodriguez (1973) (CL, pp. 795-804) (Texas’s use of local property taxes to finance public schools causes massive disparities in funds available per pupil in different localities).

Plyer v. Doe (1982) (CL, pp. 804-10) (Texas requires children of illegal immigrants to pay a “tuition fee” to enroll in public schools).

Heise, “State Constitutional Litigation, Education Finance, and Legal

Impact: An Empirical Analysis” (Reserve).

Heise, “State Constitutions, School Finance Litigation, and the ‘Third

Wave’” (Reserve).

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.

NOTE: FINAL EXAM, MONDAY, MAY 3^RD, 2-3:50 P.M.; GOOD LUCK!