Constitutional Law II

Political Science 416

Spring 2006

Dr. Sean F. Evans

Office: PAC A-38

Phone: (731) 661-5237

The U.S. government is currently detaining numerous people, all non-citizens, for alleged terrorist related activity. No one knows who they are, how long they have been held captive, where they are being held, or on what charges. These cases are very controversial, are headed on their way to the Supreme Court, and raise several questions. Can alleged terrorists be denied the right to counsel for an unlimited amount of time? Do the interrogations conform to due process standards? Is the government threatening the use of a military tribunal to coerce testimony? Why is the government waiting so long to charge these individuals when all citizens must be released without arraignment within 48 hours? Can these individuals receive a fair trial after the adverse publicity? Is the government prosecuting prosecuted these people because of his political and/or religious beliefs or his actions? Can the US government hold non-citizens to different standards than citizens? How far can the government suspend civil rights and liberties for national security reasons? These cases all raise questions about the rights of the accused, free speech, discrimination, and the free exercise of religion.

While most people believe that constitutional interpretation is a rather simple process of comparing the legislation to the Constitution and determining if the former confirms to the latter, the above example suggests that constitutional interpretation is not that clear cut. Moreover, this example indicates that your answer has profound social, political, and economic consequences.

These questions of what rights the Constitution gives individuals, citizens or non-citizens, and how the court comes to these conclusions is the main focus of this course. Consequently, this course is an examination of constitutional interpretation and development in the US with an emphasis on the role of the US Supreme Court in the American system of government. Though this is an upper division course, it is impossible to present a comprehensive review of constitutional law in two semesters, much less one. However, I will try to give you a good idea about the political process of constitutional lawmaking, introduce general principles, and address the central theoretical concerns facing those who study and watch the courts.

The second semester of this sequence focuses on the “rights constitution.” We tend to think of the Supreme Court and the Constitution primarily in terms of civil and individual rights. However, for most of its history, the Court focused almost exclusively on questions of structure and process in American government. It was not until this century, and particularly the Warren Court, that the Court began to enforce the provisions of the Bill of Rights against the states. Today, the most volatile issues in American politics – race, sex, speech, religion, etc. – are questions of rights and where the individual’s right begins and ends in relation to the government and other individuals.

Requirements

This course uses a combination of case, historical, and political analysis and materials. Court cases, legislation, and executive orders are the primary source materials of constitutional lawmaking. This material allows you to evaluate first-hand the theory and practice underlying constitutional principles. At first, cases are difficult to read. The workload might seem burdensome in the first weeks, but we will spend time working closely with the text so that you can learn how to analyze cases. By the end of the course, you will understand better the nature of our constitutional system and have the background necessary for further inquiry. Most of the material is found in the following textbook available at the Lifeway Bookstore.

O’Brien, David M. 2005. Constitutional Law and Politics: Civil Rights and Civil Liberties, 6^th ed. NY: Norton.

Grading. Your grade for this course will come from three exams, your legal brief and oral presentation, and your participation. The dates for the exams are listed on the syllabus so make sure that you attend those days. I do not give make-ups unless you have a university-authorized excuse. Each exam is worth 20% of your grade and the exams are cumulative. Failure to take an exam means that your final will count twice. Moreover, when and/or if I curve test or final grades, I reserve the right to withhold the curve from students who never attend class.

Once grades are returned, you must wait 24 hours before discussing a grade with me. This serves as a time for you to cool off and to determine what you may have done wrong. After this time, I am more than happy to talk with you about what you did wrong and discuss how you can improve over the remainder of the semester. If I make a mistake, I will rectify that, but I do not engage in point grubbing.

As with all of my classes, if you make substantial improvement over the course of the semester, I am willing to forget your earlier grades. Learning is a process and it is more important what you know at the end than what you know at the beginning. Hopefully, this class will improve your analytical and communication skills so that you become a successful attorney or something else equally fulfilling.

Participation. It is absolutely essential for you to study these materials carefully. The approach in this course is interactive and interrogatory. You will be expected to participate actively in a dialogue as I lecture infrequently. In this respect, I will treat this class much like law school. While this is not a law school, most of you are interested in law school. Therefore, I want to familiarize you with some of their practices. There, the professors do not tolerate a lack of preparation and non-participation. Neither will I. Therefore, you will get three passes (I am not prepared). On the third "I am not prepared" and for every two after that, your grade will drop one letter grade. In determining "I am not prepared," it can be as simple as you saying that or it will be my determination by your fumbling and obvious unfamiliarity with the case.

Class participation is worth 10% of your grade. In assessing participation, students who attend class but do not participate earn a D in participation. Those who show they read but show a superficial understanding receive a C. Those who read and show they understand the material in discussions receive a B for participation and those who excel by showing a thorough understanding of readings and an ability to connect concepts across lectures, readings, and discussions receive an A for participation.

To aid in this endeavor, students will brief cases in the format to be discussed Feb. 9. Each student will sign up for a case, write the appropriate brief, and email to your colleagues and myself by 4pm the day before class. While different individuals are responsible for briefing certain cases, you are responsible for all cases. That means that you should come prepared to discuss all cases because questions concerning the cases will be directed to all students.

Legal Brief. An important part of a legal career is communicating your ideas to others: clients, colleagues, members of the judicial system. To aid you in this endeavor, each individual will be required to write a 15-20 page brief and argue your case before a three-judge panel at the end of the semester. By March 7^th, individuals will sign up for a case that s/he wishes to argue. Students will then write a brief that identifies the legal question(s), cites the appropriate authorities, presents your arguments, and refutes your opponent's arguments. I will present more detailed information concerning the formatting and content at a later date. Draft briefs will be due April 18 with final drafts due May 2. On May 2, I will need four copies of your brief (one for each judge and one for your opponent). Oral arguments will take place at the end of the semester. Each side for each case will have 15 minutes to present their case to the judicial tribunal. During this time, the court may let you talk non-stop or, more likely, will pepper you with questions.

Cheating. Don’t do it. Anyone caught cheating will receive an automatic F for the course and will be referred to the appropriate authorities for punishment.

Extracurricular. Students are expected to attend any special political events this semester. This includes Union Pre-Law Society meetings.

Special Needs. If you have any special needs that will affect your ability to learn in this class, please inform me and I will take the appropriate steps to help you.

The Syllabus. I reserve the right and prerogative to modify the syllabus in accordance with student needs. The syllabus should not be construed as a contract.

Class Outline

Feb. 2 Introduction

O’Brien, Ch. 2

Feb. 7 Interpreting the Constitution

O’Brien, Ch. 1B

Feb. 9 Judicial Decision Making & Briefing Cases

O’Brien, pp. 1583-86 & Handout

Feb. 14 The Nationalization of the Bill of Rights

O’Brien, Ch. 4

Feb. 16 Judicial Approaches to the First Amendment

O’Brien, Ch. 5A

Feb. 21 Obscenity

O’Brien, Ch. 5B

Feb. 23 Libel, Commercial Speech, and Broadcast Media

O’Brien, Ch. 5C & D

Feb. 28 The Free Press

O’Brien, Ch. 5E - G

March 2 Symbolic Speech and Rights of Association

O’Brien, Ch. 5H & I

March 7 Establishment Clause

O’Brien, Ch. 6A

Van Orden v Perry (2005) & McCreary v ACLU (2005) in handout

Choose case to brief and argue

March 9 Free Exercise Clause

O’Brien, Ch. 6B

March 14 Catch up and review

March 16 First Midterm

March 20 – 24 Spring Break

March 28 Search and Seizure

O’Brien, Ch. 7 A & B

March 30 Search and Seizure

O’Brien, Ch. 7 C & D

April 4 Search and Seizure

O’Brien, Ch. 7 E & F

April 6 Self-Accusation

O’Brien, Ch. 8

April 11 Right to Counsel

O’Brien, Ch. 9

April 13 Cruel and Unusual Punishment

O’Brien, Ch. 10

Roper v Simmons (2005) in handout

April 18 Catch up and review

Draft of Legal Brief Due

April 20 Second Midterm

April 25 Right to Privacy

O’Brien, Ch. 11

April 27 Equal Protection -- Race

O’Brien, Ch. 12A & B

May 2 Equal Protection – Race

O’Brien, Ch. 12 B & C

Legal Brief Due

May 4 Equal Protection – Non-racial classifications

O’Brien, Ch. 12D

May 9 Catch up and review

May 11 Final Exam

May 18 Oral arguments 8:30-10 am