Constitutional
Law II
Instructor: Cindy Cates
Office: 118D
E-mail: ccates@towson.edu
Phone: 410.704.3586
Home Page: (with on line syllabus): http://www.towson.edu/~cates/
Hours: Monday:
Wednesdays:
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s rights to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
--Justice Robert H.
Jackson,
“[I]n the long run it is the
majority who will determine what the constitutional rights of the minority
are.”
--Memorandum from William H. Rehnquist, law
clerk, to Justice Robert Jackson, “A Random Thought on the Segregation Cases” 2
(Library of Congress, Jackson Papers, Box 184, case file: segregation cases)
(1953)
Clearly, liberty, equality and democracy are
three of the most cherished of American political values. Yet, these three values are often at great
odds. After all, the hallmark of a
democratic society is majority rule. As
we all know, however, majorities can be devastating to individuals’
liberties. If the majority doesn’t like
the way the minority practices religion, the way it views the political world,
even the way it looks, the larger group will try to squelch the smaller. This
is a problem that has been at the core of the American political system since
the beginning.
In large part, the American Constitution was
structured to mitigate that very tension.
Of course, there were those who still feared the worst, and they
insisted on a Bill of Rights. And, when
the Constitution proper and its first ten amendments proved not quite
sufficient to the task, a Fourteenth Amendment was added to the mix.
This course is about that tension between
majority rule, individual liberties, and equal rights. It will be an introduction to constitutionally-based
liberties and rights, with special emphasis on Equal Protection and First
Amendment liberty issues. Because it is
the arbiter of constitutional tensions, most of our study this semester will
involve the careful review, analysis, and discussion of Supreme Court
opinions.
You should note, that
beyond the first several class periods, this course will have few lectures so
that during every class, we will have an opportunity to discuss the major
issues assigned for that day. Students
must therefore be prepared in advance of each class meeting. If you are unable or unwilling to make this
commitment, then you should not take the class.
It is hoped that through discussion and debate, we can raise the cogent
issues and frame them in their proper form and discuss them with informed
intelligence, cool reason, and warm emotion.
REQUIREMENTS:
REQUIRED
TEXTS:
Irons,
A People’s History of the Supreme Court
O’Brien,
Constitutional Law and Politics: Civil Rights and Civil Liberties, Vol 2
O’Brien
(ed), The Lanahan Readings in Civil Rights and
Civil Liberties
ATTENDANCE
& PARTICIPATION:
My wish, after the first several class periods, is to spend most of class time
in general discussion, give-and-take, and student consideration of the
material. If you have a question or comment to make during one of our meetings,
please do not hesitate to raise it. Each of you can make valuable contributions
to our general understanding of the materials, and no-one's perspective or
opinion is any more, or less, important than any other. This is especially true given the nature of
our subject matter. We will have to read, think, write, and compare our
thoughts with each other. For these reasons, you will place yourself at a
significant disadvantage if you do not prepare for our class sessions and if
you do not attend them. As an added incentive, class participation will
count toward 10% of your final grade (such that regular, informed
participation throughout the semester will garner 10% A and a semester's worth
of virtual silence and/or nonattendance will get you 10% F. "In-betweens" will get "in-between"
grades.) Please note that more than 3 unexcused absences will result in an
automatic participation grade of F.
In addition (please
see below), throughout most of the semester, you will be asked to submit case
briefs. These will accumulate to 15% of your grade (again please see below).
CASE
BRIEFS:
In order to help you prepare for class discussions and exams you will be asked
to submit case briefs on several (generally, 4-5) of the major assigned cases
(all those marked with an *) for each class.
Those briefs will be due on the Monday of the week the cases are to be
discussed. The briefs will constitute 15% of your final grade. You should also,
however, brief the non-asterisked cases for your own files. Your briefs will be
essential in preparing for class discussions, exams, and the moot court
exercise. Case briefs are discussed at Appendix 1 and we will address how to
brief cases during the first couple of class meetings.
Each brief is to be neatly typed, and should be no longer than three pages. During the class in which the briefed cases are discussed, you may feel free to make marginal notes based on our conversation. At the end of each class, briefs will be submitted to me, marginal notes and all. I will return them in about a week. Briefs submitted on the day assigned will receive a +; late or missing briefs will receive a -. (Of course, I reserve the right to assign a - to truly sloppy or thoughtless briefs even if submitted on time). Warning: Failure to brief assigned cases will be lethal to your successful completion of this course. See Appendix 1.
MOOT
COURT:
Near the end of the semester, you will participate in a moot court. A moot court exercise is an opportunity
for you to play the parts of attorneys and justices of the Supreme Court. In
doing so you argue (if an attorney) and decide (if a judge) a hypothetical case
involving issues that might actually come before the Supreme Court of the
GRADE
RECAP:
Participation 10%
Daily Case Briefs 15%
Mid-Term Exam 20%
Final Exam 20%
Moot Court 35%
Paper (Brief or Opinion): 20%
Oral (Argument
or Questions): 15%
Students
must know the terms in O'Brien's glossary!
For other definitions of legal and constitutional terms, their phrases,
and general usages, students may consult any number of online dictionaries
including Findlaw’s searchable dictionary: http://dictionary.lp.findlaw.com/
The 'Lectric Law Library's Legal Lexicon Lyceum: http://www.lectlaw.com/def.htm or law.com dictionary: http://dictionary.law.com/lookup2.asp
DIRE WARNINGS:
Dire warning #1: All assignments, including daily course briefs, moot
court briefs and opinions, and moot court presentations must be submitted in a
timely manner. So too, exams must be
taken on the assigned days. Late daily
course briefs will suffer substantial grade penalties. Late moot court assignments and missed exams
will receive a grade of F. The only
exception is when you submit, in a timely manner, a bonafide medical
affidavit which has been signed by a physician on his/her letterhead or
prescription form containing his/her telephone number. The term "timely manner" is defined
here as "within two days of a student's return to classes." Dire warning #2: Plagiarism in universities is on the
rise. It is a very serious breach of
academic ethics. Any student caught
plagiarizing can expect to receive a grade of F for the entire course and their
names will be reported to the Dean. A
record of the offense will then be placed in their permanent file For further information on plagiarism, please see: http://saber.towson.edu:80/~cooklib/instr/plagiari.html
http://www.indiana.edu/~wts/wts/plagiarism.html
http://www.hamilton.edu/academics/resource/wc/AvoidingPlagiarism.html
COURSE
SCHEDULE: We will try to keep to the following
schedule, but it may not always be possible.
Students are responsible for all assigned cases and commentary,
even they are not specifically discussed and debated in class. To be more precise, students must master all
the readings and cases listed below even if we do not have time to review
them.
FIRST:
READ THE CONSTITUTION!! (O'Brien, 1-21)
Week
of August 29 (classes start on Wednesday)
Topic: Syllabus discussion, course introduction
Assignment: None
Week of Sept 3 (no class
on Monday)
Topic:
Assignment: In lieu of a case brief, please
submit a short paper (1-3 pages) discussing how the founders sought to preserve
liberty within the constitutional framework.
Topic: The Power of the Court: Judicial Review and
Constitutional Interpretation
Assignment:
*Marbury v.
Eakin v. Raub
Topic: The Nationalization of The
Bill Of Rights
Assignment:
*Barron v.
The Slaughterhouse Cases
*Palko v.
*Rochin v.
Griswold v.
Week of September 24:
Assignment: Dred Scott v. Sandford
* Plessy
v.
Shelley v. Kraemer
*Brown v. Board of Education
Bolling v. Sharpe
*Brown v. Board of
Education II
Cooper v. Aaron
Adarand
Constructors, Inc. v. Pena
Week of October 1:
Craig v. Boren
*Michael M. v. Superior Court
Romer v. Evans
*Plyler v. Doe
Zadvydas v.
*Bush v. Gore (2000)
(access this via Lexis or Findlaw)
Week of October 8:
Monday, October 8: MIDTERM EXAM
Topic 1: Moot Court Assignments
Topic 2: Introduction to the First Amendment
Assignment: None
Week of October 15:
Topic:
Free Speech
Assignment: Schenck v. U. S.
*Gitlow v.
Whitney v.
Dennis v.
*
Cohen v.
Tinker v.
*
R.A.V.v. St. Paul
*
Week of October 22:
Topic:
Lesser and Unprotected Speech
*Miller
v.
Paris
Adult Theater v. Slaton
National
Endowment v. Finley
*New
York Times v. Sullivan
*Hustler
Magazine v. Falwell, 485
44
Liquormart v.
*Central
Hudson Gas & Electric v. Public Service Commission, 447
Greater
New Orleans Broadcasting Association v.
Week
of October 29:
Topic:
Free Press
Cases: *Near v.
*New York Times v.
*FCC v.
*Globe Newspaper Co. v. Superior Court for
New York Times v.
Sullivan
Week of November 5:
Topic:
Religious Establishments & Free Exercise of Religion
Everson v. Board of Education
*Engel v. Vitale
*Lemon v. Kurtzman
Lee v. Weisman
Zobrest v. Catalina Foothills
Rosenberger v. Rector
Agostini v. Felton
*Santa Fe Independent School District v. Doe,
530
Good
News Club v.
Cases: *Sherbert
v. Verner
*Employment Division v. Smith
Lukumi Babalu Aye v.
Boerne v.
Week of November 12:
Topic:
Privacy
Griswold v.
*Roe v. Wade
Planned Parenthood v. Casey
*Bowers v. Hardwick
Cruzan v. Director
*
Week
of November 19:
Topic:
Moot Court Preparation
Week
of November 26:
Topic/Assignment:
Moot Court Oral Arguments
Week
of December 3:
Topic/Assignment:
Moot Court Opinions (Final arguments, if any)
Week of December 10:
Assignment:
Final Papers (Briefs/Opinions) due no later than
Some adjustments may have to be made to this
schedule during the course of the semester.
Appendix
1: Briefing Cases
Each
brief should be neatly typed, in 12 point font, with 1-inch margins on all
sides, and free of typographical errors.
An average brief will be roughly 11/2 to 2 pages in length.
As
lawyers and laypeople alike know, court opinions are often dense, complex,
meandering, and even tedious pieces of literature. As a result, a simple
perusal of an opinion may leave the reader a little befuddled and thus unable
to recollect any
important points. Because of the difficult nature of
court opinions, it is helpful to brief a case. Briefing (or, to use more common
terminology, outlining) allows the analyst to cull out the important components
of a case, thus aiding understanding and recall.
There
is really no one correct way to brief a case. However, certain elements
(discussed below) should be present in any successful brief. Remember to brief
cases BEFORE they are to be discussed in class and to brief ALL assigned cases.
Case briefs aren't easy, but with practice you will get the hang of them.
If
you need help, don't hesitate to ask me.
HOW
TO CONSTRUCT A BRIEF (THE BRIEF ON CASE BRIEFS)
There
are ten (10) parts to the case brief. Each part is distinct within itself.
Please brief case information in the order shown
below:
1.
Case name, number, and date
2.
Parties
3.
Legal Proceedings
4.
Facts
5.
Legal Provisions
6.
Issue(s)
7.
Decision
8.
Rule of the Case
9.
Reasons
10.
Concurring & Dissenting Opinions
CASE
NAME, NUMBER, & DATE is simply the name of the case (e.g.
PARTIES
are the individuals involved in the case. Who is suing whom? Who is the
petitioner or appellant? Who is the respondent or appellee? In other words,
identify the parties (by proper name, by a short description and by status on
appeal).
LEGAL
PROCEEDINGS encompass what kind of case this is (civil or criminal). What
remedy is being sought? What did the trial court decide? If the case was heard
by a lower appellate court, what did that court decide? You should indicate which party initiated the
legal action and what decisions have been made leading up to the current case.
Briefly
convey the FACTS of the case. What are they? Are they in dispute? If so, what
is in dispute?
Identify
the LEGAL PROVISIONS involved in the case. What law(s) were violated? What is
(if applicable) unconstitutional? Why? What rules of law are applicable? What are the precise legal claims that each
party is making?
ISSUE
is the fundamental legal question the case raises. What issue (or question) is
presented for decision? It should be kept general, but be precise.
What
was the DECISION of the case? Who won?
The
RULE OF THE CASE is the GENERAL legal principle the case sets down that can be
applied to other cases.
REASONS
will probably be your longest section. State the rationale for the decision
made. How does the court justify its decision? What arguments did the appellant
and appellee raise? How did the court handle them? Also,
state who authored the majority opinion. Moreover, include major
precedents cited (doctrinal criteria), founding intent, textual references,
structural rationales, and/or social values.
Be
sure to discuss CONCURRING AND DISSENTING OPINIONS. If the opinion is given,
give a summary of what the opinion is arguing. If it is omitted from the text,
state that there is an opinion, but it was omitted.
This
is a general explanation about how to brief a case. Please keep in mind that
all of the above statements/questions may not be applicable in every case. I
will discuss briefings more in class. Briefings take PRACTICE--the more you do,
the better you'll become at doing them.
The
sample brief below illustrates what a brief should look like.
SAMPLE
CASE BRIEF
Students of Con Law II v. Cates, 0
PARTIES:
A
group of college students (appellants) are suing their instructor, Cates
(appellee).
LEGAL
PROCEEDINGS:
This
is a civil case. Appellants are seeking relief in the form of revised grades
and positive law school evaluations. The courts below issued conflicting
rulings. The U.S. District Court (MD) ruled in favor of the appellants, but
refused to reach the
constitutional issue. The U.S. Circuit Court of Appeals for
the 4th Circuit reversed the District Court, ruling that appellee Cates was
endowed with special rights that outweighed the First Amendment rights of
petitioner students. The students
appealed, and the U.S. Supreme Court granted certiorari.
FACTS:
The
facts apparently are not in dispute. Students were asked to read and discuss
several Court cases over two class periods. They refused, instead engaging in a
dialogue over some unrelated political/legal phenomenon. Cates subsequently
issued failing grades for the entire class and refused to write any
professional letters of reference.
LEGAL
PROVISIONS:
The
students claim that Cates abridged their First Amendment right to engage in
meaningful dissent and to discuss political issues of their own choosing. Cates counter-claims that the Ninth and Tenth
Amendments, as applied to her, outweigh the
students' constitutional rights.
ISSUE:
To what extent may a government-employed educator prevent students from speaking about issues unrelated to the subject matter of the course?
DECISION:
Affirming
the Appellate Court ruling, the Supreme Court ruled in favor of appellee Cates.
RULE
OF THE CASE:
On
the matter at issue, the Court, citing Pontifical v. Twenty Unnamed
Graduating Seniors, ruled that students' speech may be restricted to the
context of an academic course. The Court, however, took the opportunity of this
case to go considerably further. It ruled, in essence, that the Supreme Court
may restrict and even coerce speech and that only Congress is subject to the
limitations of the First Amendment. In so doing, the Court has, apparently, in
one fell swoop, overturned most of its First and Fourteenth Amendment
precedents.
REASONS:
Though
somewhat vague, the Court seems to rely on several sources of rationale for its
decision. Toward the specific issue of the case, classroom speech, the court
relies on precedent suggesting that student speech may be restricted. On the
broader matter, the Court's new sweeping powers under the First and Fourteenth
Amendments, the justices appear to hinge their decision on the following:
First, a statement attributed to Chief Justice Hughes, "The Constitution
is what the judges say it is," which suggests
broad interpretive powers for the Supreme Court. Second, the Court employs a
strict textual construction of the First Amendment which mentions only a
limitation on Congress. Finally, in its reference to the mysterious Federalist
86, the Court appears to place some reliance on the original intent of the
framers.
CONCURRING
AND DISSENTING OPINIONS:
There
were no concurrences. Justice Stevens, dissenting, simply said, “Say what??”
Appendix 2
A FEW (OF MANY) ON-LINE RESOURCES
SUPREME COURT RESOURCES:
The Supreme Court Historical Society http://www.supremecourthistory.org/
JURIST Supreme Court Page http://jurist.law.pitt.edu/supremecourt.htm
Oyez U.S. Supreme Court Multimedia Database http://oyez.nwu.edu/
New York Times
Supreme Court Guide
http://www.nytimes.com/library/politics/scotus/index-scotus.html
Washington Post,
Supreme Court
http://www.washingtonpost.com/wp-srv/national/longterm/supcourt/supcourt.htm
LII Supreme Court Collection http://supct.law.cornell.edu/supct/index.html
OTHER JUDICIAL
RESOURCES:
The Federal
Judiciary Homepage http://www.uscourts.gov/
The Federal Judicial Center http://www.fjc.gov/
"The Third
Branch," Newsletter of the Federal Courts, http://www.uscourts.gov/ttb/
Emory Circuit Court Finder http://www.law.emory.edu/FEDCTS/
Findlaw Circuit
Court Finder http://www.findlaw.com/casecode/courts/
OTHER RELEVANT
GOVERNMENT AND NONGOVERNMENT AGENCIES
Office of the
Solicitor General http://www.usdoj.gov/osg/
U.S. Dept. of Justice, Civil Rights Division http://www.usdoj.gov/crt/
American Bar
Association http://www.abanet.org/
The Federal Court Clerks Association http://www.id.uscourts.gov/fcca.htm
Liberal Advocacy Groups:
The American Constitution Society for Law and Policy http://www.madisonsociety.org/
American Civil
Liberties
People for the
American Way http://www.pfaw.org/
Conservative
Advocacy Groups
Judicial Watch http://www.judicialwatch.org/
The Federalist Society http://www.fed-soc.org/
LEGAL RESOURCES:
The Federalist
Papers http://lcweb2.loc.gov/const/fed/fedpapers.html
Thomas Legislative Information http://thomas.loc.gov/
LEGAL SEARCH
ENGINES, PORTALS, CRAWLERS, ETC.
Academic Universe / LEXIS-NEXIS http://cooklibrary.towson.edu/databasesByTitle.cfm
FindLaw http://www.findlaw.com/
CataLaw http://www.catalaw.com/
LawRunner http://www.lawrunner.com/
Meta-Index for
AllLaw http://www.AllLaw.com/
WWW Virtual
Library--Law,
University Law
Review Project http://www.lawreview.org/
SELECTED CONSTITUTIONAL LAW SITES
Legal Information Institute: ConLaw http://www.law.cornell.edu/topics/constitutional.html
Findlaw Constitutional Law Center http://supreme.lp.findlaw.com/
Megalaw Constitutional Law http://www.megalaw.com/top/constitutional.php3
First Amendment Cyber-Tribune http://w3.trib.com/FACT/
Legal Information Institute: First Amendment
http://www.law.cornell.edu/topics/first_amendment.html
Findlaw: First Amendment http://caselaw.lp.findlaw.com/data/constitution/amendment01/
Free Expression Network http://www.freeexpression.org/
Legal Information Instiute: Equal
Protection http://www.law.cornell.edu/topics/equal_protection.html
LAW
REFERENCE:
'Lectric Law Library Legal Lexicon http://www.lectlaw.com/def.htm
Duhaime's Law
Dictionary http://www.duhaime.org/diction.htm
Everybody's Legal Dictionary http://www.nolo.com/dictionary/wordindex.cfm
Peter W. Martin,
"Introduction to Basic Legal Citation (2000-2001 ed.)" http://wwwsecure.law.cornell.edu/citation/citation.table.html