Constitutional Law II
PSC 325 (Spring 2008)

Syracuse University

 

 

Class Instructors Class Times and Locations
   
Tom Keck Lecture sessions
tmkeck@maxwell.syr.edu T, Th 9:30-10:25 a.m., EGG 010
(315) 443-5862  
Office hours: T, Th 10:30-11:30, EGG 315  
   
 

Discussion sections

Richard Price, riprice@maxwell.syr.edu

101: Th 6:30-7:25 p.m., Max 110
Office hours: T 12:00-2:00, EGG 027

102: Th 3:30-4:25 p.m., Max 111
   
   
Jason Plume, jsplume@maxwell.syr.edu 103: F 9:30-10:25 a.m., Max 108

Office hours: T 11:00-1:00, EGG 024

 104: F 10:35-11:30 a.m., EGG 070

Prerequisite: It is customary to complete Constitutional Law I before taking this class. Students who have not done so should speak with the instructor during the first week of class.

Course Content and Objectives

In an effort to promote self-government and prevent abuses of power, the framers of the U.S. Constitution created a complex system of representative elections and fragmented authority. They hoped that their design would generally allow the people themselves to direct the nation's affairs, but would also prevent either the people or their elected representatives from violating certain fundamental principles of limited government.

Building on our efforts in Constitutional Law I, we will examine the evolution of this design over time and assess how well it has worked overall. In doing so, we will focus on three related strategies adopted by the framers to empower democratic government while also limiting it. The framers sought to limit governmental power by (a) dividing it among many hands, (b) subjecting it to the regular check of democratic elections, and (c) authorizing the judicial protection of certain fundamental rights. Moving chronologically from the founding to the present, we will focus primarily on the third strategy this semester, but we will make regular reference to the other two as well.

The judicial protection of individual liberty and minority rights has been the focus of a number of prominent political conflicts in recent years. Consider, for example, the ongoing debates regarding abortion rights, same-sex marriage, race-conscious affirmative action, the right to bear arms, and the separation of church and state. By the end of the semester, you will have a richer understanding of the constitutional dimension of these conflicts, rooted in the long and contentious effort to balance the principles of democracy, liberty, and equality in the American polity.

As with Con Law I, this course is designed to help you develop an enriched understanding of the principles embedded in this country's fundamental law and a refined ability to determine on your own whether the practice of American politics is faithful to these principles. As such, the course addresses controversial topics that may raise fundamental questions about your personal and political beliefs. It is therefore essential that students make every effort to tolerate competing views and to treat each other with concern and respect.

Course Readings

Most of the readings for the course are from David M. O’Brien's Constitutional Law and Politics, Volume 2 (6th edition, 2005). The book is available at the SU Bookstore; if you purchase it elsewhere, be sure to get the 6th edition, volume 2. (The ISBN# is 0-393-92566-8). While there is only one required book, it is quite expensive. (The list price is $67.50.) If this poses a hardship for anyone, please discuss this with me as soon as possible.

Those readings that are underlined are available on the internet and are linked from the on-line version of this syllabus. These readings are every bit as important as those which appear in the casebook, so be sure not to neglect them. While I have edited most of the cases which you are required to read on-line, they still tend to be longer than those which appear in the book. As such, you should develop the skill of skimming these cases to find the most important constitutional arguments.

My home page has a long list of helpful links, but the following websites may be of particularly interest:

Course Expectations

Grades will be based on three 3-page papers (10% each); an 8-10 page paper (30%); a comprehensive final exam (25%); and class participation (15%).

The paper assignments are all designed to require a close reading and interpretation of the texts we are using in the course. They do not require any additional or outside reading, and I discourage you from doing any. What I am looking for is a clear argument of your own, supported by a careful, detailed, and thoughtful discussion of the Supreme Court opinions and other materials we have read. Since good writing comes from careful revision, I encourage you to discuss your papers with me and/or your TA before they are due. Finally, please consult my paper expectations page before completing each assignment.

Short papers (10% each, 30% total): The course schedule below details several options for the short paper assignments. Choose three of them to complete. For each one that you choose, answer the assigned question in a paper of approximately three pages, typed and double-spaced. The papers are due in sections. Note the late paper policy below.

Everyone must submit at least one paper by February 7/8; i.e., everyone must do at least one of the first three options.

Long papers (30%): In a paper of 8-10 pages, answer one of the following questions. You should support your argument primarily by reference to material drawn from this course and, where relevant, Constitutional Law I. You should not do any additional outside research, though an occasional reference to an event or concept that we have not covered is okay.

1. To what extent are current understandings and practices regarding the freedom of expression consistent with the original constitutional design? When and how did the key changes occur (if there have been any)? Were they changes for the better or for the worse? Or some of each? Support your argument with specific references and examples.

2. To what extent are current understandings and practices regarding religious freedom consistent with the original constitutional design? When and how did the key changes occur (if there have been any)? Were they changes for the better or for the worse? Or some of each? Support your argument with specific references and examples.

3. To what extent are current understandings and practices regarding equality on the basis of race, gender, and sexual orientation consistent with the original constitutional design? When and how did the key changes occur (if there have been any)? Were they changes for the better or for the worse? Or some of each? Support your argument with specific references and examples. 

4. To what extent are current understandings and practices regarding unenumerated (i.e., unwritten) rights consistent with the original constitutional design? When and how did the key changes occur (if there have been any)? Were they changes for the better or for the worse? Or some of each? Support your argument with specific references and examples.

These papers are due in the final discussion section of the semester. Note the late paper policy below, and remember to consult my paper expectations page.

Final exam (25%): At the end of the semester, as indicated in the schedule below, we will have an in-class, closed-book, comprehensive final exam.

Class participation (15%): This portion of your grade will be based on your in-class contributions in the discussion sections. All students are expected to participate in class discussion. This does not mean that you have to come to class with a fully developed point of view about every issue addressed in the reading. It does mean that you need to complete the readings prior to class, and come to class with some thoughts or questions in response to those readings. No one will be penalized for being wrong or imprecise, for expressing uncertainty or frustration, or for changing their minds. But it should be clear that you are trying, that you have done the readings and are working toward a mastery of the material.

Your participation grade will be assigned as follows: In the final discussion sections of the semester, you should submit a one-page self-assessment of your class participation. Your TA will read your self-assessment, compare it with his/her own perceptions, and then assign you a participation grade. If necessary, I may then adjust this grade slightly for any students who made particularly notable contributions during our lecture sessions.

In the self-assessment, you should assign yourself a letter grade (A, B+, etc.) for participation, and then write a paragraph or two explaining and justifying that grade. For example, you might address the following questions: How many times were you absent from class? How often did you participate in class discussions? When you didn't participate, were you nonetheless alert and prepared for class? If so, then why didn't you speak up on those occasions? How often did you do anything that disrupted class discussions or distracted your fellow students (e.g., chatting, sleeping, cell phone ringing, leaving the room during class, etc.)? 

Course Policies

Attendance policy: Attendance in lectures is not mandatory, and will not be directly factored into your grade. You are, however, responsible for understanding all material covered in class, and I will grade your work under the assumption that you have mastered that material. If you miss a lecture session, you will usually be able to listen to an audio recording of that lecture on-line. If you miss a discussion section, it will be more difficult to make up the work, but if the absence was due to illness or some other documented and legitimate reason, we will help you do so to the extent possible. Your participation grade will unavoidably be reduced as a result of each of these absences.

Discussion sections: As noted above, all students in attendance will be expected to participate in class discussion. In preparing for your discussion sections, you are responsible for all assigned pages, but you should focus in particular on the cases and questions that are identified for each week in the schedule below.

Grading policy: Most of the written assignments for this course will be graded by your teaching assistant. If you have any questions about these written assignments, either before or after they are due, you are welcome to speak with either me or the TA. If you are dissatisfied with your grade on any assignment graded by the TA, you may appeal that grade to me. To do so, you should submit a clean copy of the paper to me, which I will re-grade from scratch. This means that you could receive a grade that is lower, higher, or the same as the grade originally assigned.

Late paper policy: Except where otherwise noted, late papers will be accepted only under unusual circumstances, and only with my explicit permission (so don't bother pleading with your TA). If and when I agree to offer an extension, I will grade the late-arriving paper myself.

Academic support services: SU provides a variety of tutoring and academic support services, and I encourage you to avail yourself of these resources. Doing so may help you learn the course material better, determine the best strategies for studying that material, improve your writing skills, and have less stress about your success in the course. Tutoring centers include the Tutoring & Study Center (TSC), the Writing Center, the Math and Calculus Clinics, the Physics Clinic, the Chemistry Clinic, and the Athletics Academic Services Center. All schedules and locations are posted on the TSC website.

Academic integrity: University-wide policy provides that "academic integrity is expected of every community member in all endeavors. Academic integrity includes a commitment to the values of honesty, trustworthiness, fairness, and respect," a commitment which "is violated by any dishonest act which is committed in an academic context." Examples of such violations include copying from another student's work, unauthorized cooperation in completing assignments or examinations, and submitting the same written work in more than one course without prior written approval from both instructors. In my experience, the most common form of academic misconduct is plagiarism, which SU policy defines as "the use of someone else's language, ideas, information, or original material without acknowledging the source." If you are caught violating any of these rules, I will assign an F for the course and then refer the matter to the CAS academic integrity coordinator for additional action. For further details on the policy, consult the Office of Academic Integrity.

Student academic work: Any work that you produce as part of your participation in this course may be used for educational purposes in future courses. For example, if you write a very good paper, I may distribute it in future classes as a model. If and when I do so, I will remove your name so that the work is rendered anonymous. 

Reasonable accommodation: Students who may need academic accommodations due to a disability are encouraged to discuss their needs with the instructor at the beginning of the semester. In order to obtain authorized accommodations, students should be registered with the Office of Disability Services (ODS), 804 University Avenue, Room 309, 315-443-4498, and have an updated accommodation letter for the instructor. Accommodations and related support services such as exam administration are not provided retroactively and must be requested in advance. For more information about ODS services and policies, click on the link above.

Religious holidays: In accordance with SU policy, I will excuse any absences that result from religious observances, provided that you notify me in advance of the planned absence.

Office hours and email communication: My regular office hours are listed above, but you are welcome to make an appointment for some other time, or simply to drop by. If you just have a quick question, I encourage you to reach me by email. In addition, I will regularly use Blackboard's "Send email" feature to contact all members of the class. This means that you are responsible for regularly checking your SU email account.

 

Course Schedule

 

The Origins of American Constitutional Rights

 

As we saw last semester, the Court has sometimes interpreted the Constitution as a guideline for the structural division of governmental powers, and sometimes as a mandate for reinforcing the democratic nature of our political system. But the Court has also interpreted it as a charter of fundamental freedoms--i.e., a declaration of individual rights or liberties which cannot legitimately be infringed by government.

Lectures

January 15: The Bill of Rights

January 17: Property Rights and Civil Liberties in the Early Republic

 

Sections

Jan. 17/18: What is the purpose of a bill of rights? How well does the U.S. Bill of Rights serve that purpose? If we had a new constitutional convention, what changes would you propose? Before sections, make sure to read all 27 amendments to the U.S. Constitution, focusing in particular on the first ten. By way of comparison, read the South African Bill of Rights as well.

 

The Jacksonian Era, Civil War, and Reconstruction

Lectures

January 22: Civil Liberties and the Slavery Question

January 24: A New Birth of Freedom?

 

Sections

Jan. 24/25: Be sure to read the Civil Rights Cases (1883) and Plessy v. Ferguson (1896) prior to sections. Short paper topic: Describe and evaluate Justice Harlan's account of the 14th amendment. (Hint: He dissented in both of these cases.) Identify one key implication of Harlan's account for modern constitutional controversies. In other words, if Harlan was right, what does that mean for the constitutionality of school segregation, affirmative action, anti-gay discrimination, or some other twenty-first-century policy?  

 

The Republican Era

Lectures

January 29: Property Rights and Civil Liberties in the Republican Era

January 31: Free Speech During Wartime

 

Sections

Jan. 31/Feb. 1: Be sure to read the Schenck, Abrams, Gitlow, and Whitney cases prior to sections. (And click here and here to see the leaflets that got Schenck and Abrams in trouble.) Short paper topic: Describe and evaluate Justice Holmes and Brandeis's approach to the freedom of speech. For these justices, what did this fundamental value mean, and what was the proper role of the Supreme Court in defending it? To what extent do you agree with their approach?

 

The New Deal and the Great Society

Lectures

February 5: The Birth of Modern Civil Liberties [Note: The opening minutes of this lecture are missing.]

February 7: Free Speech in the 1940s and 50s

February 12: Free Speech in the 1960s and 70s

February 14: Church and State in the 1950s and 60s

February 19: Church and State in the 1970s and 80s

February 21: Privacy and Reproductive Rights

February 26: The Criminal Forces v. the Peace Forces

February 28: Brown v. Board and Modern Equal Protection Analysis

March 4: Racial Equality After Brown

March 6: From Race to Gender

March 18: Economic Justice and the Constitution (and a Quick Look at Immigrant Rights)

 

Sections

Feb. 7/8: Be sure to read Chaplinsky v. New Hampshire (1942), Dennis v. U.S. (1951), and Cohens v. California (1971) before sections. Short paper topic: Are there any forms of speech that do not merit first amendment protection? What are they? Do they really merit no protection at all or just limited protection?  Which, if any, of the Court's legal doctrines are helpful in drawing these lines? Striking a "balance" between liberty and order? Allowing the prohibition of "clear and present dangers"? Dividing speech into high- and low-value "categories"?

 

Feb. 14/15: Be sure to read Everson v. Board of Educ. of Ewing Township (1947) and Engel v. Vitale (1962) before sections. Short paper topic: Thomas Jefferson famously declared that the first amendment erected a "wall of separation" between church and state. Was he right? What exactly is the purpose of such a wall? And how high should it be, particularly in the context of public and private schools? Choose one contemporary controversy along these lines--e.g., the teaching of creationism (or "intelligent design"), the pledge of allegiance, or school vouchers for students attending religious schools--and indicate how your vision of the wall of separation would apply.

 

Feb. 21/22: Be sure to read Miranda v. Arizona (1967) and Roe v. Wade (1973) before sections. Short paper topic: What, if anything, do the Miranda and Roe decisions have in common? What do these common features tell us about the emerging role of the modern Supreme Court in the late 1960s and early 1970s?

 

Feb. 28/29: Be sure to read Brown v. Board of Education (1954) and University of California v. Bakke (1978) before sections: Short paper topic: What is the lesson of Brown v. Board of Education for the constitutionality of race-conscious university admissions policies today? Are they required by the Constitution, allowed but not required by the Constitution, or prohibited by the Constitution?

 

March 6/7: Be sure to read Plyler v. Doe (1982) before sections. Short paper topic: What constitutional rights, if any, do undocumented aliens (i.e., "illegal immigrants") have? How about the children of undocumented aliens? 

 

March 13/14: No sections this week.

 

Constitutional Rights in the Contemporary Era

Important dates

April 24/25: Long paper assignment and participation self-assessment due in sections.

Friday, May 2, 2:45-4:45 p.m.: Final exam

 

Lectures

March 20: Crime and the Rehnquist Court

March 25: Affirmative Action and School Desegregation Today

March 27: From Gender to Sexual Orientation

April 1: Property Rights Today

April 3: Free Speech Today

April 8: Burning Crosses and Flags (and Nude Dancing?)

April 10: Church and State in the 1990s

April 15: Church and State in the 21st Century

April 17: Unwritten Rights in the 1980s and 90s

April 24: Unwritten Rights in the 21st Century

April 29: The Court and the Democratic Process

 

Sections

March 20/21: No sections this week.

 

March 27/28: Be sure to read Romer v. Evans (1996) and Kelo v. New London (2005) before sections. Short paper topic: Which, if either, of these decisions strikes you as an example of judicial activism? Why? Does that term have any useful meaning? For another recent decision (though not from the U.S. Supreme Court) widely characterized as activist, see Goodridge v. Department of Public Health (2003). Note that this is the second-to-last short paper option of the semester.

 

April 3/4: Be sure to read Morse v. Frederick (2007) before sections. Short paper topic: Did the Roberts Court decide this case correctly, in your view? Drawing on your understanding of the development of the first amendment over time, did this decision mark a significant departure from the Court's prior approaches? Note that this is the final short paper option of the semester.

 

April 10/11: Be sure to read Van Orden v. Perry (2005) and McCreary County v. ACLU (2005) before sections. No short paper topic this week, but come to class prepared to discuss when, how, and why it is constitutional to display the Ten Commandments on government property.

 

April 17/18: Be sure to read Lawrence v. Texas (2003) and Gonzales v. Carhart (2007) before sections. No short paper topic this week, but come to class prepared to discuss whether the current Court--and particularly Justice Kennedy--has a principled and consistent approach to the protection of unwritten constitutional rights against legislative infringement.

 

April 24/25: Exam review. No reading, but long paper assignments and participation self-assessments are due.