about:blankAdd titleAssignments
American Constitutional Development:Rights and Liberties
Fall 2023
List of Daily Assignments
Read These Instructions Carefully First
Note: Cases for this class are assigned from 4 sources: the main textbook, the cases on the website, electronic supplement for the textbook, and a few cases that are not in the textbook or the supplement. Cases that should be briefed before class are so noted (click here for instructions how to brief)
- Each day there will be from 1-5 main cases to brief. There will be additional cases assigned which will be handled in one of two ways. Dr. Sager will discuss these cases in the context of the assigned cases or he will expect the class to discuss them as hypothetical fact situations in light of the theory, rules, doctrines etc. of the assigned cases. Those cases that Dr. Sager will discuss in detail are noted as “Dr. Sager to discuss “ Cases listed with no notation to “brief” or Dr. Sager, will be covered as the hypotheticals and you will be told which ones you need to know something about for the exams.
- Cases listed by name with the word “Brief” after them, e.g. Hurtado v. California assigned in class 2 , means to write a brief for that case and bring it class.
- Cases listed by name with “S” and a number can be found in that that chapter of the supplementary cases. Access to them come with the purchase of the book or can be purchased
separately. You should have information in your book as to how to get on the website. Again if you buy a used book, you can purchase the supplement separately. The cases in the textbook and on the supplement website are edited versions of cases, usually without footnotes. You can always find the full text of the case on the web if it raises your interest or you don’t have access to that assigned case. Supplement cases are usually edited down to a couple of pages. - Cases listed by name that are not in the textbook or supplement are denoted by NIB. I did link a short excerpt from the first NIB case, Calder v. Bull. Except for Calder, you do not need to brief or peruse them before class. However, the full opinion versions can be found on the Findlaw website which is linked on the Resource Page Also you can just search the web by case name and find the full text or summaries on other websites.
- If the case is noted to be discussed by Dr. Sager, you do not need to brief the case before class. Normally these are cases
that have issues similar to those cases briefed for the day. Sometimes they are discussed for their historical significance. Other times they have a slightly different fact situation or a slightly different interpretation of the Constitution than the main cases assigned for that day. For Dr. Sager, a few of these cases are no longer in the canon of civil liberties cases for reasons that are hard to fathom. - Case are assigned for various reasons. Most are assigned because they are considered part of the Civil Liberties canon, an agreed upon case list created by “experts” for civil liberties courses. Some are assigned mainly because there is just a memorable phrase or idea in them you should know . Others are assigned to illustrate different points of view among the justices. Still others are assigned because they form a foundation for future cases which may not show up for 40 years or more . Still others are assigned because they are eventually overruled or they overrule previous cases we have covered. Cases are covered almost exclusively in historical order so you can see the ebb and flow, the expansion and contraction, the creation and destruction of various constitutional doctrines and interpretations.
- You will be provided a list of the cases for which you are responsible prior to each exam. For most of the exams, this list will mainly be the cases you were assigned to brief.
- While it may seem like there are lot of cases to know, you will see there are a small set of recurring issues with slightly different fact patterns. Since the Court is often split on most of these issues you should know which justices generally take which side.
- In a civil liberties or civil rights case almost every case has the same basic form: the case starts in one of two ways. 1) An individual claims that some law or activity of federal, state or local government violates a claimed civil right or liberty or privilege and immunity under the Bill of Rights or the 13th, 14th or 15th amendments , 2) The government claims it can do something and the individual answers that it can’t because what the government wants to do infringes on that individual’s civil right or liberty under the Bill of Rights or the 13th, 14th or 15th amendments. Almost every case then involves an individual versus the federal government or state government or an entity created by the state or federal government. It is usually named, that way, e.g. Hurtado v. California or Barron v. Baltimore There are a few cases where another entity of government is the surrogate for an individual., e.g the very first case, Calder v. Bull seems to be two individuals suing each other. In fact, one side really represents the position of the state. For instance, Calder v. Bull really is Calder v. Connecticut. The Slaughterhouse cases are really suits against the state of Louisiana. All of this aawill be pointed out as it occurs.
- Cases colored purple are assigned to the class for briefing. Those colored black Dr. Sager will discuss and present the brief. For some cases Dr. Sager is covering there is a supplemental assignment such as reading a brief on the case or reading a part of the case and so on.
10. n the assignment page there are links to materials prepared by Dr. Sager to help summarize some sets of cases, cases that have something similar about about them and end up at the Supreme Court in a fairly compact time period. These will help
you answer some of the questions below.
II When reading the cases, you should think about the cases several ways.
1. What are the facts and holding of the case. What are the various answers to fill in the brief.
2. How does this case relate to the other cases, issues, theories, constitutional doctrines we have covered so far
3.What are the views of the various justices on these issues.
4. What are the larger political issues, political theories, constitutional and democratic values, and interpretive issues raised and answered by this case.
5. What generalizations can you make, if any, as to how an historical Court, say the Warren Court, decides cases in terms of some of the dimensions of analysis, e.g., liberal/conservative, activist/restraintist, originalist/nonoriginalist, expanding rights/limiting rights, pro-govenrment/anti-government and so on.
6. What does this case or set of cases, tell us about how the Court or individual justices might resolve some of the larger civil rights and civil liberties issue we will be facing in the future. We know, among others, some of the privacy issues, due process and equal protection issues now and perhaps we can hypothesize about those that will be coming in the future.
For instance, the courts are now beginning to have to deal with privacy issues with regard to others finding out what is on your mobile phone. Courts will soon be dealing with facial recognition issues and gene modification issue. European courts are beginning to deal with your right to remove your history, a history you may or may not have provided to places on the internet. How about an equal right to get on a shuttle to some distant planet to save your family DNA against some scourage on
earth. As we go through the course, feel free to contribute the future issues you see.
Check the website regularly for changes. Normally the changes will be a couple of weeks in advance.
As we get later into the semester, mostly after the 2nd exam, I will be assigning students to read briefs rather than edited cases. These briefs were prepared by students usually because the the case had not yet made it to the latest revision of the textbook.
By then you should be able to get all you need from the brief to understand the case, the test used by the Court, the arguments for each side based on all of our past case analysis, and have a good idea about ow most of the current justices voted in the case. In many cases we will be looking for what moved a “swing justice.” We will be watching justices like these throughout the semester.
Note: The 3 assigned supplementary books will require students to read maybe 20 pages per week
early in the sememst
Class 1 Monday August 21
Course Overview
If you have never studied much about the Court, read Epstein and Walker pp 1-40 to reacquaint yourself with the Supreme Court as an institution and with terms relevant to its operation. Read this over the next two weeks or so if you are not familiar with the Supreme Court and how it functions and fits into the large scheme of our governmental institutions.
The Bill of Rights and the 14th Amendment In 18th and 19th Century America. Begin reading Arnn book.
Read or reread The Declaration of Independence and the Preamble to the Constitution
The Pre Marshall Courts
Calder v. Bull NIB Dr. Sager to discuss. (In this case, The Court was trying to decide if Connecticut legislature violated the Constitution. Court held for state of Connecticut). For Class Read a couple of paragraphs from two of the opinions linked below. What are they arguing about. Both agree that the Connecticut legislature acted constitutionally. (click here)
Some questions to consider. (We will spend much of the semester answering some of these questions)
What is a “right”? Who has “rights”? What are inalienable “rights”? What is the source of the “rights” of all Americans? What is the first line of protection for your rights?
What is “liberty?” What are “civil liberties?” What are the the rights to “life, liberty and happiness” as well as “life, liberty and property?”
Barron v. Baltimore Brief Facts are simple: Barron says city of Baltimore caused his wharf to become worthless because of various public works projects. He claims this is a taking of property without compensation contrary to 5th amendment For the 3 page text of the case (click here) If you have a problem doing the brief from my facts and the short opinion, sample briefs for cases assigned today and Wednesday appear at the bottom of the syllabus page. Try to do these without the samples first. These briefs can assist you if you have any questions about how to brief. Links appear on Syllabus page. Also there is a discussion of the briefing form for this course on the Syllabus page.
Did The Bill of Rights Apply To the States?
Some other questions to consider in relation to this and perhaps several other cases.
Does Barron mean that citizen’s property as of 1833 do not have any protections against actions of their state and local governments?
Can you think of a situation where Marshall might have said a citizen’s property is protected?
Can you think of an interpretation of the 5th amendment that would support Plaintiff’s claim?
Where did the state and local governments get the power to affect a citizen’s property?
What does this case tell us about Marshall’s view of federalism?
What are the rights which are the one such that “they are endowed by their creator with certain unalienable rights?”
No matter what these rights are, do they or should they affect the meaning of the later adopted Constitution?
Some advice for Students from some well known professors with diverse points of view from a variety of universities: (click here)
George Orwell v. Robert Reich(click here)
Begin reading The Founder’s Key by Larry Arnn. what is relationship between Declaration of Independence and Constitution. When was the United States founded according to him. Is the Constitution “a relic.”
Class 2 Wednesday, August 23
Orwell quotes not gotten to at first class. (Click here)
The Bill of Rights and the 14th Amendment In 19th Century America
What Did the Post Civil War Amendments Do and what were they meant to do? Movie Lincoln is important to understanding these.
Dr. Sager will include a few comments on the movie.
The Slaughterhouse Cases -Brief (Click here for sample brief )
Bradwell v. Illinois Dr. Sager to Discuss Read Bradley quote from case (click here)
What is required to file a suit under the 14th or legislation enacted under it.
The Civil Rights Cases Dr Sager to discuss(click here for quotes and framework)
What was the meaning of “due process” and did 14th Amendment incorporate Bill of Rights
Hurtado v. California Brief
Walker v. Sauvinet NIB study from brief (click here)
What is or was the meaning of “equal protection”?
Yick Wo v. Hopkins Brief (Click here for 4 page version of case )
Plessy v. Ferguson Brief
Williams v. Miss(1898) and Strauder v. West Virginia(1880)Dr. Sager to Discuss NIB
Questions to consider:
Did Yick Wo win because he was Chinese or because he was a businessman?
What standard did the Supreme Court apply in Plessy for judging whether an unconstitutional discrimination had taken place?
Was that the same or a different standard than in Yick Wo?
What was the social science argument used by the majority in Plessy?
Should social science or even physical science be a basis for a Supreme Court opinions?
Which of the cases assigned today for briefing are based on “originalist” arguments?
What does “due process” really mean? How do you know that? Read Professor Graglia’s short op. ed. from the Wall Street Journal in 2005 entitled “The Death of Due Process.” This op. ed. could be found now in the Congressional Record (click here) Also below Professor Graglia’s piece in the Congressional Record is a Charles Krauthammer column analyzing the medical marijuana case, Gonzales v. Reich. In this case Scalia and Thomas were on opposite sides. Krauthammer shows why they differed in terms of how they interpret the Constitution and also shows how inadequate and shallow press coverage is of Supreme Court cases using this case as the example. Note the general point of the article, the shallowness of much of our dialogue today and the need to get outside of how you see the world. Dr. Sager Daily Texan controversy in 2001 (click here)
Class 3
Monday August 28
The Bill of Rights and the 14th Amendment In Late 19th Century America:
The Religion Clauses – be sure you know these short phrases in 1st Amendment
Reynolds v. U.S. Dr. Sager to Discuss Supp
Bradfield v. Roberts Dr. Sager to discuss Supp
Questions to consider for class. What is the purpose of the religion clauses in the 1st amendment?
What are the definitions of the terms in these clauses?
Have these clauses fulfilled whatever purpose they seem to have had? This is a question we will consider throughout the semester.
The Bill of Rights and the 14th Amendment In Early 20th Century America
Roots of “Substantive” Due Process
Lochner v. New York Brief Supp.(click here for copy if you don’t yet have supplement)
Meyer v. Nebraska Dr. Sager to discuss Supp.
Pierce v. Society of Sisters Dr. Sager to discuss Supp For relevant quotes (click here)
Free Speech: The Search for Standards
Schenk v U.S Brief
Abrams v. U.S. Brief
Gitlow v. New York Brief
Whitney v. California Dr. Sager to discuss S 5
Stromberg v. California Dr. Sager to discuss S 5
Questions to consider for briefs
What is the difference between laws about “freedom of speech” and laws about “speech”?
Is there a difference with regard the 1st Amendment?
Why protect either in the first place?
What is the difference between the tests used in Schenk, Abrams and Gitlow?
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Class 4
Wed August 30
Civil Rights and Civil Liberties in the early and mid 20th Century
Free Press and Freedom of Association
Near v. Minnesota Brief
DeJonge v. Oregon Dr. Sager to discuss S 5
Rights of the Accused and Convicted (Dr. Sager to discuss all of these except Powell v. Ala. which is in text and needs to be briefed)
(Click here for brief chart comparing these cases)
Twining v. New Jersey Dr. Sager to discuss
Weeks v. U.S. Brief S 10
Olmstead v. U.S. Dr. Sager to discuss S 10
Powell v. Alabama Brief
Brown v. Missisippi Dr. Sager to discuss S 10
Betts v. Brady Dr. Sager to discuss S 11
Wolf v. Colorado S 10 (Van Geel analysis of Weeks as precedent
for Wolf – click here)
The Incorporation Arguments Revisited
Palko v. Connecticut Brief
Adamson v.California Read Dr. Sager’s Brief(click here) then
outline the arguments between Frankfurter and Black in this case.
For their full opinions click here)
Rochin v. California S 10
For various formulations of the meaning of due process, click here.
Some questions to consider for this class
What is the meaning of the words in the various formulations of “due process?” What are the arguments for and against incorporation and how do they relate to Justice Miller’s interpretation of the 14th in Slaughterhouse? If you apply part of the Bill of Rights to the states through the due process clause, is the meaning of say the 5th amendment stricture against self-incrimination the same for both the federal and state governments? Does freedom of the press have different meanings at different times in our history? Alternately, how does technology affect the way freedom of the press is interpreted?
Class 5
Wednesday September 6
Civil Rights and Civil Liberties in the early and mid 20th Century
Fundamental Rights Analysis
Buck v. Bell Dr. Sager to discuss NIB
Skinner v. Oklahoma Dr. Sager to discuss NIB
The Second Amendment
U.S. v. Miller Brief S 8
Preferred Freedoms and Carolene Products: Footnote 4 in Carolene
U.S. v. Carolene Products Dr. Sager to Discuss Case in Supp. Read and know famous footnote 4( click here)
Voting Discrimination and Voting Rights
Smith v. Allwright Brief Supp 14
(Click here for Dr. Sager’s summary of White Primary
Cases)
Colegrove v. Green Dr. Sager to discuss
Some questions to consider for today’s cases.
What is a fundamental right?
How does it differ from a right or a civil right?
Is there a hierarchy of rights protected in the Constitutition and if so what is it?
While Buck v. Bell is not good law today, might it come back as good law when the government runs the health care system?
What questions about the 2nd Amendment are not answered in U.S. v. Miller? Can you think of at least 4.
What is the “political thicket” and why should or should not a court be involved in the “political thicket” according to Frankfurter. Are there any cases not in a “political thicket?
Discussion of Movie ‘Lincoln’ and first 3 chapters of Ramaswamy book
What did you learn from it that you did not know? Based on the movie what was the Civil War about?
Was Lincoln a racist? While this is about the passage of the 13th Amendment, the issues and congressional players involved the passage of the 14th were very similar. More details about the arguments about the meaning and passage will be found in Kull book, The Colorblind Constitution .
How does the movie fit with chapters 2 and 3 in the Ramaswamy book
Class 6 Monday September 11
Read Bartlette’s 2007 piece from the Wall Street Journal entitled “Whitewash” What relevance, if any, does this article and these white primary cases have today? (Click here) What does this article say about the current cancel culture. Recall that in Vivek’s book he talks about the great moral philosopher David Hume being cancelled for a footnote in one of his many brilliant books on philosophy. This appears at the end of the chapter on the Civil War.
Civil Rights and Civil Liberties in the early and mid 20th Century
Free Speech at Mid Century-Protected and Unprotected classes of speech
Thornhill v. Alabama Dr.Sager to discuss Supp
Cantwell v. Connecticut Brief
Chaplinsky v. New Hampshire Brief
West Virgina Board of Ed v. Barnette Brief
Dennis v. United States Brief from summary here(click here)
What is “speech” for the purposes of these cases and what is the practice of “religion” for these cases?
What can we now say about the meaning of the 1st Amendment with some certainty.
Civil Rights and Civil Liberties in the early and mid 20th Century
Civil Liberties in War Time and Equal Protection
Korematsu v. U.S. Brief (click here for court opinion)Read only Majority, Murphy and Jackson opinions, (skip Frankfurter concurrence and Roberts dissent)
Some preliminary and early models and charts
Tests (click here)
Interpretation (click here)
We will discuss first 3 chapters of Ramaswamy book focusing on Chapter 3. The Constitutional War
In connection with chapters 2 and 3 we will discuss Spielberg’s movie “Lincoln” What did you learn. Was Lincoln a racist. What were differences in points of view if any in Spielberg’s movie vs. Ramaswamy chapters?
Class 7 Wednesday September 13
Civil Rights and Civil Liberties in the early and mid 20th Century
The Development of Equal Protection: Attacking Equal In “Separate But Equal”
McLaurin v. Oklahoma Dr. Sager to discuss. This and related cases are fully discussed in the movie
“Simple Justice.”
Sweatt v. Painter Brief
Establishment of Religion
Everson v. Board of Education Brief
Read and study Justice Douglas’s statement in a related case(click here)
The Warren Court Legal Revolution 1954-1969
The Beginnings of the idea of Privacy
Poe v. Ullman Read and Summarize Harlan dissent(click here) S Monday
Questions for today’s cases
What is the rule and test for Justice Black as to whether an activity is an “establishment of religion.”
What is “religion” for Black.
Can you explain the difference in approach to civil liberties Justice Jackson takes in Dennis vs. his approach in Korematsu and Barnette.
Equal Protection
Brown v. Board of Education I and II(Brief)
Bolling v. Sharp Dr. Sager to discuss
Finish viewing film “Simple Justice” before this class. We will discuss in class as we discuss Brown. This movie is on the first exam.
Paper #1 will be a brief of a recent Supreme Court case using my briefing form that can be found on Syllabus pages. To get your assigned case( click here )
Assignment will be due Wed October 4th
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Class 8 Monday September 18
The Warren Court Legal Revolution 1954-1969
Procedural Due Process:Rights of the Accused and Convicted
Wolf v Colorado (Dr. Sager to discuss)
Mapp v. Ohio Brief
Gideon v. Wainwright Brief
Escobedo v. Illinois Brief
Miranda v. Arizona Brief
Katz v. U.S. Dr. Sager to discuss
Terry v. Ohio Brief
Religion
Sherbet v. Verner Brief
Schemp v. Abington Township Brief
Engel v. Vitale Dr. Sager to discuss S 4
Will take questions and comments in class about the Spielberg film “Lincoln.” This will be on Exam 1
Class 9 Wednesday September 20
The Warren Court Legal Revolution 1954-1969
Speech, Association, Libel, Obscenity, Conduct
NAACP v. Alabama Supp Dr. Sager to discuss
Roth v. U.S. Brief
Jacobellis v. Ohio Supp Dr. Sager to discuss 8 most famous words in the opinion
NYT v. Sullivan Brief
U.S. v. O’Brien Brief
Brandenburg v. Ohio Brief
Tinker v. Des Moines Brief
Madison Federalist 51 Angels quote in full (click here)
Where are we now with regard to the Declaration of Independence as it relates to the Constitution.
We will spend a few minutes discussing the Arnn book which will be on Exam 1.
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Class 10 Monday September 25th
Exam 1 The cases that will be covered will be posted a week in advance
Movies: Lincoln, Simple Justice
Supplementary Books
:The Founder’s Key Part I pp 1-127
Nation of Victims chapters 1-3
Current case list for exam which may be modified before class 9.
Barron v. Baltimore, Slaughterhouse Cases, Hurtado v. California, ,Yick Wo v. Hopkins , Plessy v. Ferguson, Lochner v. New York ,.. Schenck v. U.S. Abrams v. U.S. Gitlow v. New York Near v. Minnesota, Dejonge v Oregon, Powell v. Alabama. Palko v. Connecticut,. Adamson v California, U.S. v Miller, Smith v Allwright,Colegrove v. Green, Cantwell v. Connecticut Chaplinsky v. New Hampshire, West Virginia Board of Ed v. Barnette, Dennis v. United States Korematsu v. United States Everson v. Board of Education, Poe v Ullman Swett v. Painter, Brown I and Brown II, Bolling v Sharp, Mapp v. Ohio, Gideon Wainwright, Miranda v. Arizona, Katz v. U.S, Terry v. Ohio, Sherbet v. Verner, Schempp v Abington Roth v. U.S., Bandenburg v. Ohio, Tinker v Des Moines, Reynolds v. U.S., Bradfield v. Roberts,, Pierce v. Society of Sisters, Meyer v. Nebraska, Rochin v. California, Walker v. Sauvinet, Thornhill v. Alabama, Bradwell v. Illinois, Wolf v Colorado, Weeks v. U.S., Olmstead v. U.S.
Class 11
Wednesday Wednesday September 27
The Warren Court Legal Revolution 1954-1969
Freedom of the Press
Red Lion Broadcasting v. FCC S 6 Dr. Sager to discuss
Fundamental Rights Analysis and Equal Protection
Loving v. Virginia Brief
Griswold v. Connecticut Brief
Stanley v. Georgia S 9 Dr. Sager to discuss
Incorporation and protecting African Americans in South
Duncan v. Louisiana Brief
Dr. Sager will discuss what are called The Sit-In cases arising from protests that began before the Freedom Riders and continued after them, Also look at the following article on Emmett Till’s lynching which occurred when Dr. Sager was in high school in the Chicago area. (click here)
( The film Freedom Riders, now available on Youtube, should be viewed by Class 12. Best version for this class https://www.pbs.org/video/american-experience-freedom-riders/
Class 12 Monday October 2
The Warren Court Legal Revolution 1954-1969
Voting Rights
Baker v. Carr Dr. Sager to discuss
Reynolds v. Simms Brief
The Burger Court: Was There A Counter Revolution?
Due Process Tests
Cleburne v. Cleburne Living Brief
8th Amendment and Death Penalty
Gregg v. Georgia Brief
Establishment of Religion
Lemon v Kurzman Brief
Wallace v. Jaffree Dr. Sager to discuss S 4
Free Exercise of Religion
Wisconsin v. Yoder Brief
What are the tests used in these cases to determine if there is a violation of the 8th Amendment(Gregg), Establishment Clause Monday(Lemon), Free Exercise Clause(Yoder) Also do Yoder and Lemon follow their historical precedents, Everson, Reynolds v. U.S., and Bradfield v. Roberts.
Class 13 Wednesday October 4
Paper #1 Due
The Burger Court: Was There A Counter Revolution?
Freedom of Speech
Cohen v. California Brief
Hustler Mag v Falwell Brief
Miller v. California Brief
Gertz v. Welch NIB Dr. Sager to discuss
Buckley v. Valeo Dr. Sager to discuss
New York v. Ferber Brief
Notes and Questions for Class
What is the new distinction created in Buckley?
Cohen should take 10 minutes to brief. With Roth as the precedent, which Van geel box does Miller fit into and what was narrowed or expanded?
What are the various tests used in each of the above cases if the Court approaches the issue with a test.
What do these and other cases we have covered have to do with, if at all, Bourgeoisie values?
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Class 14 Monday October 9
For the beginning of this class read the following article from a conservative blog called The Federalist. Be prepared to argue both sides of the Mr. Davidson’s premise.(click here)
Where in his article does he discuss the Declaration of Independence and how does his argument fit with Larry Arnn’s.
The Burger Court: Was There A Counter Revolutions?
Commercial Speech
Va. Bd. of Pharmacy v. Va. Citizen’s Council Supp
Bates v. Arizona Bar Brief
Central Hudson G and E v. PSC Brief
Equal Protection
Swann v. Charlotte Mecklenburg Brief
Milliken v. Bradley Dr. Sager to discuss S 12
Bakke v. Board of Regents Brief
Here is the statute being interpreted in Swann:
Civil Rights Act Statute in Swann
Section 2000c(b) defines “desegregation” as it is used in Title IV:
“Desegregation” means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but “desegregation” shall not mean the assignment of students to public schools in order to overcome racial imbalance. Section 2000c-6, authorizing the Attorney General to institute federal suits, contains the following proviso: nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standard.
Is the decision consistent or inconsistent with the statute?
What are the various positions in Bakke and what is the rule going forward in affirmative action cases.
Freedom of Association
Roberts v Jaycees Brief S 5
What is the statute being subjected to constitutional scrutiny. What test is Brennan using? What is O’Connor’s disagreement with Brennan’s test? Why isn’t case in textbook any more? Why didn’t Brennan who assigned
the opinion since he was senior Justice in the majority, assign it to a woman who agreed on the outcome? (He was the senior Justice in the majority since Burger and Blackmun recused themselves, Why do you think
they did this?)
Class 15
Wednesday October 11
Begin reading The Color Blind Constitution and we will discuss at the beginning of class in light of Bakke
The Burger Court: Was There A Counter Revolution?
Gender Discrimination
Reed v. Reed Brief
Frontiero v. Richardson Dr. Sager to discuss S 12
Craig v.Boren Brief
Rostiker v. Goldberg Dr. Sager to discuss S12
Michael M. v. Superior Court Dr. Sager to discuss S12
Miss Univ for Women v. Hogan Dr. Sager to discuss S 12
Other Equal Protections Issues
San Antonio ISD v. Rodriguez Brief
Plyler v. Doe Brief (Student Brief1)(Student Brief 2)
Notes and questions for class:
What are the various tests used in there gender discrimination cases so far? What assumptions are being made about
gender in these gender discrimination cases?
Privacy and Fundamental Rights
Roe v. Wade Brief
Bowers v. Hardwick Supp 9 Dr. Sager to discuss
Where do particular parts of the Roe opinion come from? e.g. trimester system, state interest, mother’s interest, precedents, etc.
Class 16 Monday October 16
The Rehnquist Court: How Conservative? 1986-200
Fundamental Rights
Cruzan v. Mo. Dept of Health Brief
Planned Parenthood v. Casey Brief
Stenberg v. Carhart Dr. Sager to discuss S 9
Lawrence v. Texas Brief
Washington v. Glucksberg Dr. Sager to discuss S 9
8th Amendment and Death Penalty
McCleskey v. Kemp Dr. Sager to discuss S 11
Atkins v. Virginia Brief (student brief1)(student brief 2)
Ewing v. California Dr. Sager to discuss S 11
Roper v. Simmons Brief S 11
Equal Protection
Notes and questions: Based on the cases we have read in class, how does the Burger Court differ from the Warren Court? What is the equal protection test in San Antonio ISD and Plyler? What are the evolving 8th amendment standards used in the Rehnquist Court death penalty jurisprudence? What is their source? Do you agree or disagree? While I have given you some student briefs in Atkins for reference purpose it is important to understand the structure of the opinion and the arguments made in the majority and dissent to fully comprehend current 8th Amendment jurisprudence.
It is always advisable when you brief a case to compare it to earlier cases in the area. Begin with a Van geel comparison. I will expect you did that when I call upon you in class.
At this point in the semester, we are looking at each case to see where it fits with previous cases and what potential issues it will give rise to in the future.
You may want to compare the underlying assumptions of various justices in Roe and Casey to the point of view of Ashleen Menchaca Bagnulo, an Assistant Professor of Political Science at Texas State, as she recounts her miscarriage. Some of her other writings include, Conservatives Should Care About Institutional Racism, The Problem of Character: Why Conservatives Must Reject Trump, and The Paradox of Title IX: Fighting Sexual Assault on Campus. https://www.thepublicdiscourse.com/2021/10/78274/
Class 17
Wednesday October 19th
The Rehnquist Court: How Conservative
Equal Protection
Affirmative Action
City of Richmond v. Croson Brief S 12 For case (click here)
Adarand Contractors v. Pena Dr. Sager to discuss
Grutter v. Bollinger Brief using this edited opinion (click here)
What is the relationship between a claim that the 14th Amendment now makes the Constitution color blind and affirmative action.
Education/Race
U.S. v. Fordice Supp Dr. Sager to discuss S12
Freeman v. Pitts Supp Dr. Sager to discuss S12
Missouri v. Jenkins (Brief Thomas excerpts only) (click here for excerpts)
Holder v. Hall (read only a paragraph of Thomas dissent click here)
For an interesting view of Clarence Thomas see Created Equal: 12 Quotes from Clarence Thomas (click here) This is practically a biographical summary with 12 of his quotes embedded. These are not from judicial opinions.
What is the criteria to determine if affirmative actions violated the 14th Amendment? Has that changed since Bakke? Should we treat the areas
of education and commerce different? Does the Court? How does Thomas’s concurrence in Jenkins fit with Burger’s opinion in Swann? Jenkins is actually part of a long series
of cases involving many issues including de jure segregation in Kansas City school district. Here one issue is about federal judges ordering a state to tax its citizens for the building and financing of a magnet school to entice white students and family who do not live in the Kansas City school districts to attend or send their children to these schools
It starts out with one of the rules federal courts developed after Brown and we see in Swann, and later limited somewhat in Milliken and Freeman. It is the notion that scope of the violation determines the scope of the remedy.
Thomas’s opinion is mainly about his view of how the Court should approach school desegregation issues. He is someone who grew up in the segregated South and holds a minority(not meant to be a pun) view on how the Court should approach this issue. What organized groups might oppose Thomas’s view and why? Be on the watch for a case or two we will cover in the future which may surprise you about Thomas’s view of an issue we have been discussing since early in the semester.
Should Justice Thomas be the most authoritative member of the Court on school segregation and desegregation since he is the only member of the Court who attended segregated schools?
How would argue for a against Thomas’s views
Have the book The Colorblind Constitution completed by Class 18, Will discuss during that class.
Class 18 Monday October 23
Voting behavior in Burger Court (click here)
The Rehnquist Court: How Conservative?
Rights of the Accused and Convicted
National Treasury Union v. Von Raab Dr.Sager to discuss
Dickerson v. U.S. Supp Dr. Sager to discuss
Establishment of Religion
County of Allegheny v. ACLU S 4. Dr. Sager to discuss
Edwards v. Aguilar Brief
Lee v. Weisman Dr. Sager to Discuss
Santa Fe Independent School district v. Doe S 4
Zelman v Simmons-Harris Brief(student brief1)(student brief2)
Van Orden v. Perry Brief
Board of Ed v. Village of Kiryas Joel Dr. Sager to discuss
Agostini v. Felton Dr. Sager to discuss S4
Free Exercise of Religion
Employment Divison v. Smith Brief
Church of the Lukami Babalu v. City of Hialeah Brief
City of Boerne v. Flores Brief
Cutter v. Wilkinson Dr. Sager to Discuss S 4
Locke v. Davey Brief (Student brief)
What if anything, do the following statements from the time of our founding have to do with the above cases:
Jefferson to Danbury Baptist Association
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. [Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from prescribing even those occasional performances of devotion, practiced indeed by the Executive of another nation as the legal head of its church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.] Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association assurances of my high respect & esteem.
Washington Farewell Address
Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice ? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?
Northwest Ordinance Section XIV
Art. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.
Art. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.
DeTocqueville
Religion perceives that civil liberty affords a noble exercise to the faculties of man and that the political world is a field prepared by the Creator for the efforts of mind. Free and powerful in its own sphere, satisfied with the place reserved for it, religion never more surely establishes its empire than when it reigns in the hearts of men unsupported by aught beside its native strength. Liberty regards religion as its companion in all its battles and its triumphs, as the cradle of its infancy and the divine source of its claims. It considers religion as the safeguard of morality, and morality as the best security of law and the surest pledge of the duration of freedom.
Class 19 Wednesday October 25
Read, digest and analyze the following article entitled:
Poll: 71% of Americans Say Political Correctness Has Silenced Discussions Society Needs to Have, 58% Have Political Views They’re Afraid to Share (click here)
Note: Cato Institute which did this survey is a very libertarian organization
did this survey several years ago. Fear is probably up considerably now.
A recent survey showed 22% ofAmerican Jews afraid to show their identity. Are the the results of two surveys related?
The Rehnquist Court: How Conservative?
Freedom of the Pres
Hazelwood v Kuhlmeier Dr. Sager to discuss
Gender
U.S. v. Virginia(VMI case)Brief
Romer v. Evans Dr. Sager to discuss
Freedom of Association
Roberts v Jaycees(assigned before test and not covered on test) Brief
Hurley v. Irish American Gay Lesbians S 5
Boy Scouts of America v. Dale Brief(student brief)
Miscellaneous Speech issues
McIntyre v. Ohio-anonymous political statements Dr. Sager to discuss
Regents v. Southworth students fees Dr. Sager to discuss
McConnell v. FEC political contributions Dr. Sager to discuss
The movie “Denial” will also be discussed. The heroine,
Deborah Lipstadt, is a very liberal professor at Emory. Biden
recently nominated her and she was confirmed to the position of Special Envoy for Monitoring and Combatting Anti-Semitism. She replaces
a friend and fraternity brother who held position during Trump
administration. Position was created during George W Bush administration. There has been some discussion over the years for the need for the position within the State Department.
Class 20
Monday October 30
The Rehnquist Court: How Conservative
Freedom of Speech
Texas v. Johnson Brief
44 Liquormart v. Rhode Island S Brief
Regents v. Southworth Dr. Sager to discus
McIntyre v. Ohio Dr Sager to discuss NIB
Hate Speech
R.A. V. v. City of St. Paul Dr. Sager to discuss NIB
Wisconsin v.Mitchell Dr. Sager to discuss
Virginia v. Black Supp Brief(click here for case to brief)
Reno v. ACLU Brief
Ashcroft v. Free Speech Coalition Dr. Sager to discuss
Hill v. Colorado Dr. Sager to discuss
Read carefully the statutes in R.A.V. and Black cases. What is the difference? Should the Constitution treat them differently?
City of St. Paul Ordinance*
“Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.”
Virginia Law
“It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.
“Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.”
__________________________
Exam #2 In Class
The Color Blind Constitution will be covered on the exam as will the movies Freedom Riders and Denial. The following cases will covered on the exam.
Also be sure to know the Jefferson, Washington, NW Ordinance and Detocqueville quotes about religion along with the Douglas quote about religion \linked with the 1947 Everson case assigned for the first test. This quote was assigned for Class 7. We will touch on it in Class 19 as we go through the religion cases.
Number is class number in which case was assigned. This list may be reduced a bit after class 19. Obviously for cases not assigned briefing which were discussed by Dr. Sager all you need to know are the facts, issue and who wins or loses and whether state policy was upheld or struck down.
You need to know all opinions in Griswold, Smith v Employmet Commission, Van Orden v Perry, Greg v. Georgia, Zelman v Harris Simmons
If the case has a dissent you should know the dissents main argument or arguments.
Church of Babalu 18, Adrand Contractors 17, Agostini v. Felton 18, Adkins v. Va 16, Bakke v Board of Regents 14, Bates v Arizona 14, Bowers v Hardwick 16, , Central Hudson vs. PSC 14, City of Boerne v Flores 18, City of Richmond v. Croson 17, City of Cleburn v Cleburn Living 12, Cohen v. California 13, County of Allegheny 18, Craig v. Boren 15, Cruzan v Board of Health 16, Duncan v La 11, Edwards v. Aguilar 18, Employment Division v. Smith 18, Frontiero v. Richardson 15, Gregg v Georgia 12, Griswold v. Connecticut 1, Grutter v. Bollinger 17, Hazelwood v Kuhlmeier 19, Hustler v Falwell 13, Lawrence v. Texas 16, Lee v.Weisman 18, Lemon v. Kurzman 122, Locke v. Davey 18, Loving v Va. 11, McClesky v Kemp 16, Michael M v. Superior Court 15, Miller v California 13, Missouri v. Jenkins 17 Thomas opinion only, N.Y. v Ferber 13, Planned Parenthood v Casey O’connor opinion only 16, Plyler v Doe 15,Reed v Reed 15, Regents v. Bakke 14, Roe v. Wade 16, Roper v. Simmons 16, Rostiker v Goldberg 15, SAISD v Rodriguez 15, Santa Fe v. Doe 19, Stanley v Georgia 11, Swann v. Charlotte 14,, Va Bd of Pharmacy 14, Van Orden v. Perry 18, Wallace v Jaffree 12, Washington v Glucksberg 16, , Wisconsin v. Yoder 12, Zelman v. Simmons 18,
Class 22 Monday November 6
The Roberts Court: Fidelity to Law?
Equal Protection Racial Discrimination
Parents Involved in Schools v. Seattle (Brief)
Ricci v. De Stefano Dr. Sager to discuss. View Amicus brief for Kedar Bhatia a former
student who is now in large N.Y. firm with Dr. Sager as counsel(click here)
Fisher v U.T Brief(2016 case)
What is diversity in Fisher? How does it add to a college education. Compare with Yale Professor Kronman’s view(click here)
Other Equal Protection Issues
Gonzales v. Carhart (Planned Parenthood) Brief Supp (student brief)
Obergefel v. Hodges Brief
The Roberts Court: Fidelity To Law?
2nd Amendment
District of Columbia v. Heller Brief (be able to discuss the various opinions)
McDonald v. City of Chicago Brief from Supp (Student brief)
Class 23 Wednesday November 8th
The Roberts Court: Fidelity To Law?
Free Speech
Walker III v. Texas Division, Sons of Confederacy Supp Brief
Morse v. Frederick Brief
U.S. v. Alvarez Dr. Sager to discuss
Obscenity, Pornography and other offensive speech
United States v. Stevens Supp (student brief)
Brown v. Entertainment Merchants Assoc Brief
United States v. Williams Dr. Sager to discuss
Finish viewing Ben Stein Movie
“Expelled.”and we will briefly discuss in class. One obvious question is what is this movie really about? Another is could this movie be made today and should something like it be made?
1 page outline of oral argument in case you briefed earlier in semester is due. Again it is oral argument for the case you briefed earlier in semester. Oral argument mp3 and transcript can be found on the Oyez, Oyez website. Outline should contain at most a 2 sentence statement of the facts of your case. Since you have already done a full brief, this should be quite easy to do.
Put your name at bottom and your row and seat number at top.
This is the only time we will be taking the outline and reviewing it. It will be returned with comments Wednesday, November 17th. If it is not returned, it means your are right on track.
Class 24 Monday November 13th
The Roberts Court: Fidelity To Law?
Free Speech
McCullen v. Coakley Dr. Sager to discuss
Religion and Speech
Christian Legal Soc.v. Martinez Supp (student brief)
Snyder v. Phelps Brief
Hosanna-Tabor Evangelical Lutheran Church Brief
Gonzales v. O Spirita NIB Dr. Sager to discuss
Town of Greece v. Galloway Brief
Reed v. Town of Gilbert Supp Brief
Trinity Lutheran Church v. Comer Dr. Sager to discuss
Espinoza v Montana Dept.of Rev Dr. Sager to discuss
American Legion v American Humanist Association(brief)
Criminal Procedure
Florida v. Jardines brief
Maryland v. King Dr. Sager to discuss
Recent Roberts Court cases
Class 25 Wednesday November 15th
The Roberts Court: Fidelity to Law
Old issues and some new issues related to issues we have
studied throughout the semester.
For these last 2 classes we are using briefs prepared by students for studying most of the cases.
The reason is I expect by now, you can look at a set of facts and issues and then figure out what similar similar cases and issues we have already covered this semester. In addition, many of the cases are so recent they are not even in supplement
Student Speech and Behavior
Majanoy Area School District v. B.L(student brief with some quotes from case)
Speech – copywrite and trademarks
Matal v Tam Brief (use case to review viewpoint and content discrimination as outlined in this case)
Discrimination Gender
Masterpiece Cakeshop v. Col. Dr. Sager to discuss
Fulton v Philadelphia (read this outstanding brief carefully(click here)
Discrimination
Trump v. Hawaii Dr. Sager to discuss briefly
Constitutional Criminal Procedure
8th Amendment
Kennedy v. Louisiana Dr. Sager to discuss
Glossip v. Gross Use this brief (student brief)
Miller v. Alabama Use this Brief (Student brief)
Jones v. Mississippi (use brief)
Abortion
June v. Whole Woman’s Health(student brief)
Finish viewing Blazing Saddles and we will have a brief discussion of movie.
“The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by an endless series of hobgoblins, most of them imaginary.”
Paper #2 Due in class. Up to 3 pages or 900 words, comparing the arguments in oral argument in your case with the arguments in the used by justices in any of the opinions, majority, concurrence or dissent. Put you row, seat number and name on the back of the last page of the paper if it is blank or the bottom of the last page if there is writing on it. Papers will be returned at Class 26.
Class 26 Monday November 27th
Recent Roberts Court cases
Abortion
Dobbs v Jackson Women;s Center (brief) For edited version of case 35 pages instead of 100 plus originally (click here)
Discrimination
Students for Fair Admissions (brief) For edited version of case 35 instead of 100 plus originally (click here)
Finish last part of Ramaswamy book, Chapter 5 till end
What, if anything, does this part of book have to do with this course
Finish viewing Blazing Saddles and we will have a brief discussion of movie.
Class 27 Wednesday November 29th
EXAM 3 in Class
Movies: Expelled, Blazing Saddles
Supplementary books : Nation of Victims chapter 5 till end
Cases for Exam
44 Liquormark, American Legion v American Humanist. Boy Scouts v. Dale, Brown v Entertainment, Christian Legal Soc v Martinez. D.C. v Heller . Dickerson v. U.S., Dobbs v Jackson Women’s Center, Espinoza v Montana, Fisher v. U.T., Florida v. Jadines, Fulton v. Philadelphi, Glossip v. Gross; Gonzales v O’Spirito. Hill v Colorado, .,Hosanna Tabor . Hurley v Irish American, Jones v. Miss, Kennedy v La, Majanoy ASD v. J.L., Maryland v. King, , Masterpiece Cakeshop, Matal v. Tam, McCullen Coakley, McDonald v. Chicago, McIntyre v. Ohio, Miller v. Ala, Morse v. Frederick, Obergefel v Hodges, Parents Involved in Community, R.A.V. v St. Paul, Reed v. Town of Gilbert, Reno v. ACLU, Roberts v. Jaycees, Romer v. Evans, Snyder v . Phelps, Students for Fair Admissions, Texas v. Johnson, Town of Greece, Trinity Lutheran v Comer, U.S v Alvarez, ,U.S. v Virginia, U.S. v Stevens, U.S. v. Williams, US. v Windsor, ,Virginia v. Black. Walker v. Texas Division, Wisconsin v. Mitchell
Cases with multiple opinions for which you need to know position of each justice. Their position may be summarized by a phrase or a quote. Dobbs, Students for Fair Admissionsm, Parents Involved in Community, Morse v Frederick, Texas v Johnson, Obergefel and U.S v Alvarez. Matching questions maybe about a single case or may contain justices’ positions from more than one case. Except for Dobbs and Students for Fair Admissions, all cases listed for multiple opinions are in the main casebook.
Class 28 Monday December 4th
End of Year Awards Dinner and Speaker at
Dr. Sager’s home
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