Instructor: Brendon Swedlow Political Science (POLS) 412

bswedlow@niu.edu Constitutional Law III

Office: 418 Zulauf Hall DU 461 MW 2:00-3:15

Hours: MW 1:00-1:50 NIU Spring 2006

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-course-pack, open-note. Most readings are in a course-pack that can be purchased at the Holmes Student Center. Some readings are only available on e-reserves (see below). No outside reading or research is required.

Exam Schedule

February 13 Midterm #1 (15%) Take-home, can be jointly authored; six pages; due

following Monday, February 20, at beginning of class

March 20 Midterm #2 (25%) Take-home; must be your own work; six pages; due

following Monday, March 27, at beginning of class

May 8 Final (40%) In-class; open course-pack, open note; but no sharing

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

Bring your own blue books.

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 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 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 students from the enrollment roster to answer questions about the readings. Students who are present and prepared to answer those questions, will receive credit for participating in class discussion that day. Students who are absent or unprepared, will receive no credit that day. Other ways to receive no credit for the day include: (1) cell phone or pager-related interruptions and (2) being late, stepping out of and back into class, or leaving early without good reason.

Oral Argument and Class Participation

Periodically, I will ask you to act as prosecutors and defense attorneys, arguing cases before judicial appellate panels composed of your fellow students. Your performance in any of these three roles will contribute significantly to your participation grade.

Prosecutors and defense attorneys 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 the prosecution and defense, followed by closing arguments/rebuttals by co-counsel. Argument will focus on constitutional not criminal 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 prosecutors, defense attorneys, 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 actual oral argument before the Supreme Court. Each attorney will have 3-5 minutes to make his or her argument, for a total of 12-20 minutes of argument.

For some cases, our readings contain transcripts of the questions that were asked and the answers that were offered when these cases were argued before the U.S. Supreme Court. In some cases, the briefs filed by parties are available online and can also be used to prepare your arguments and questions.

For Extra Credit: Jury Service in NIU Law School Mock Trials

There may be an opportunity for you to serve as a 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 jurors.

I encourage all of you to serve as jurors 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, this semester we should learn whether President George Bush’s nomination of Federal Appellate Judge Samuel Alito to the Supreme Court is successful. You could watch some of the Senate’s confirmation hearings 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, 2006. 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

NOTE: NO CLASS MONDAY, JAN. 16, MARTIN LUTHER KING DAY

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 14^th Amendment

Reading a Supreme Court Decision

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

Fourth Amendment Searches and Seizures

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, 5^th ed., (The Foundation Press, 1990), 1-15.

THE EXCLUSIONARY RULE

Malcolm Feeley and Samuel Krislov, “Searches, Seizures, and the Warrant Requirement,” Constitutional Law, 2^nd 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. (ON E-RESERVES)

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.

WEEK 5 RESTRICTING THE EXCLUSIONARY RULE

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

MONDAY, FEBRUARY 13^TH

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)

WEEK 6 SEARCHES IN THE ADMINISTRATIVE STATE

NOTE: MIDTERM #1 DUE AT BEGINNING OF CLASS ON

MONDAY, FEBRUARY 20^th

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)

Pottawatomie City v. Earls (2002) (drug testing in school)

(ON E-RESERVES)

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, 2^nd 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, 2^nd 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)

McCune v. Lile (2002) (sexual abuse treatment program)

(ON E-RESERVES)

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

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

WEEK 9 NO CLASS MARCH 11-19^TH, SPRING BREAK

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

WEEK 10

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

MONDAY, MARCH 20^th

“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 M. O’Brien, “Post-Furman Rulings on Capital Punishment,” Supreme Court Watch – 2003 (W.W. Norton and Company, 2004), 134-5.

(ON E-RESERVES)

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, 2^nd 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)

Atkins v. Virginia (2002) (mentally retarded and capital punishment)

(ON E-RESERVES)

WEEK 11

NOTE: MIDTERM #2 DUE AT BEGINNING OF CLASS ON

MONDAY, MARCH 27^TH

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 12 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 13 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 14 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 15 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 16 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.

Virginia v. Black (2003) (cross burning) (ON E-RESERVES)

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

NOTE: FINAL EXAM, MONDAY, MAY 8^TH, 2-3:50 P.M.; GOOD LUCK!