Government 314: Civil Liberties in American Constitutional Law

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Colby College

Department of Government

Government 314: Civil Liberties in American Constitutional Law

Spring 2008TR 1:00-2:15

Professor Joseph R. Reisert859-5316

261 Diamond Social Sciences

Office hours: Wednesdays 1-3 and by appointment

“We hold these truths to be self-evident: that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” With these words, the Continental Congress announced to the world that the new American nation would be based on a faith in the importance of individual rights. The authors of the Declaration treated the existence of rights—and our knowledge of their content—as so unproblematic as to be “self-evident.” The American nation’s commitment to rights was reaffirmed with the ratification of the Constitution and the subsequent adoption of the Bill of Rights. But as the founding of our republic and its “re-founding” in the crisis of the Civil War recede ever further into the past, the nature and limits of our rights seem ever more problematic. Problems multiply when the rights under consideration lie at a far remove from those expressly guaranteed in the constitutional text. Accordingly, this course asks: What are rights? Why do we have them? What rights does the American Constitution protect? What rights should ideally have the status of constitutionally-protected rights? Readings of Supreme Court cases will be supplemented by contemporary essays in philosophy and constitutional interpretation.

This course has three objectives: (1) to introduce and critically examine some prominent philosophical theories of rights, (2) to introduce and critically examine some prominent contemporary theories of constitutional interpretation, and (3) to cover a number of landmark Supreme Court cases arising under the First and Fourteenth Amendments.

Course Requirements and Grading

Classes will be conducted as a mixture of lecture, discussion, and Socratic questioning. Students will be expected to have read and thought about the assigned cases and materials prior to our class meeting. It is strongly recommended that students brief the cases and take notes on the other readings. Students are encouraged to discuss the cases and their assignments with each other outside of class; each student’s written work, however, must be entirely his own.

Grades will be determined according to the following formula:

•Class participation (includes case and article summaries): 20%

•Short paper (due Monday, February 25): 10%

•Midterm exam (held in class on Thursday, March 20): 15%

•Long paper (you may write about doctrine under the Equal Protection Clause or about the doctrine of substantive due process; the equal protection paper is due on Monday, April 21, and the due process paper, on Monday, May 12. If you write both, only the higher of the two will be counted): 25%

•Comprehensive final examination: 30%

N.B. Failure to complete any major component of the course (e.g., skipping an exam, failure to attend an adequate number of classes, or failing to submit either the short paper or the moot court brief/opinion) entails failing the course as a whole—regardless of performance on the completed components.

Attendance at all classes is expected. Students who miss any class, for whatever reason, will have the option of having their participation grade reduced by 1/3 of a letter grade (from A- to B+, for example) or writing a 3 page response paper on one of the readings for the missed class. This “make-up” response paper must be turned in at the next class session after the missed class. Missing 4 or more class sessions will normally result in your being dropped from the class with a failing grade.

Required Books

Brest, Levinson, Balkin, Amar, and Siegel, Processes of Constitutional Decisionmaking, 5th. edn. Aspen Publishing Co.

A number of readings have been placed on reserve. The reserve readings are essential to the course and are mandatory. Two copies of each article have been placed on reserve. In addition, where articles were excerpted from books available at Miller, a copy of the book has also been placed on reserve.

Where to find the Cases and Other Legal Reference Materials

•The full texts of all Supreme Court cases are available (in books) in Miller Library.

•The full texts of all Supreme Court cases are also available on-line:

•All cases from 1990 to the present and a selection of historically significant cases are available at This is a very interesting site and well worth a visit. (Real Supreme Court junkies can sign up here to receive via email the syllabi of new decisions as they are released).

•All cases are also available on the web from Lexis-Nexis (web.Lexis-nexis.com/universe/). For more recent years, Supreme Court briefs are also available from Lexis.

•Articles from all American law reviews may be found through Lexis-Nexis (years of coverage vary, however).

•The Medill School of Journalism at Northwestern University maintains a very interesting site called “On the Docket” which offers extensive coverage of cases currently pending before the Supreme Court (

•A wide variety of legal information can be found at (access to cases now requires registration)

•The Supreme Court of the United States maintains its own website at

Schedule of Readings

I. What are rights and why do we have them?

Feb 7 (R):Introduction: Moral Rights and Legal Rights

Declaration of Independence (handout)

Constitution of the United States (BLBAS, 1-15)

Feb 12 (T): Individual Rights in the Bill of Rights and the Fourteenth Amendment

The Slaughter-House Cases (BLBAS, 319-337)

Lochner v. New York (BLBAS, 412-431)

The Evolution of the Bill of Rights and its “Incorporation” Against the States (BLBAS, 485-493)

Feb 14 (R): Antiperfectionism

Randy Barnett, “The Moral Foundation of Modern Libertarianism” from Peter Berkowitz, ed., Varieties of Conservatism in America, 51-74 (available on line)

Ronald Dworkin, “What Rights Do We Have?” from Taking Rights Seriously, 266-278 (on reserve)

Ronald Dworkin, “Introduction: The Moral Reading and the Majoritarian Premise” from Freedom’s Law, 1-38 (on reserve)

Feb 19 (T):Perfectionism

John H. Garvey, “Push-Pin or Poetry” from What Are Freedoms For? 1-19 (on reserve)

Joseph Raz, “Rights and Individual Well-Being” from Ethics in the Public Domain, 44-59 (on reserve)

Robert P. George, “Natural Law and Civil Rights” (on reserve)

Joseph Raz, “Liberalism, Scepticism, and Democracy,” from Raz, Ethics in the Public Domain, 97-124 (available on line)

II. Freedom of Speech and Expression

Feb 21 (R):Political Speech and Libel

Abrams v. United States; Schenck v. United States; Debs v. United States; Gitlow v. New York; Whitney v. California; Dennis v. United States; Masses Publishing Co. v. Patten; Brandenburg v. Ohio (BLBAS, 460-468)

New York Times Co. v. Sullivan (on reserve)

Robert H. Bork, “Neutral Principles and Some First Amendment Problems” from Rakove, ed., Interpreting the Constitution, 212-224 (on reserve)

Feb 25 (M):Short paper due at noon in my office (Diamond 261)

Feb 26 (T):Why Protect Freedom of Speech?

Ronald Dworkin, “Why Must Speech be Free?” from Freedom’s Law, 195-213 (on reserve)

Robert George, “Freedom of Speech,” and “Freedom of the Press,” from Making Men Moral, 192-210 (on reserve).

Joseph Raz, “Free Expression and Personal Identification” Oxford Journal of Legal Studies, Vol. 11, No. 3 (Autumn, 1991) 303-324 (on reserve)

Feb 28 (R):Offensive Speech: Obscenity, Flag Burning, and Cross Burning

Roth v. United States and Albert v. California (on reserve)

Miller v. California (on reserve)

Paris Adult Theater I v. Slaton (on reserve)

Texas v. Johnson (on reserve)

Virginia v. Black, Barry E., et al. (on reserve)

Mar 4 (T):Public Forums and Funding

Rosenberger v. Rector and Visitors of the University of Virginia (BLBAS, 1716-1723)

National Endowment for the Arts v. Finley (BLBAS, 1723-1730)

United States v. American Library Association (BLBAS, 1731-1737)

III. Freedom of Religion

Mar 6 (R):Free Exercise

Reynolds v. United States (BLBAS, 405-411)

Wisconsin v. Yoder (on reserve)

Employment Division v. Smith (on reserve)

Church of the Lukumi Babalu Aye v. City of Hileah (on reserve)

Mar 11 (T): Establishment Clause I: Prayer in School

Everson v. Board of Education of the Township of Ewing (on reserve)

Engel v. Vitale (on reserve)

Wallace v. Jaffree (on reserve)

Lee v. Weisman (on reserve)

Mar 13 (R): Theories of Religious Liberty

John Garvey, “Good is Good” from What Are Freedoms For? (on reserve)

Robert George, “Protecting Religious Liberty in the Next Millennium: Should we Amend the Religion Clauses of the Constitution?” 32 Loyola University of Los Angeles Law Review 27 (1998) (available on line)

Noah Feldman, “A Church State Solution” The New York Times Magazine, July 3, 2005 (available on line)

Kathleen M. Sullivan, “Religion and Liberal Democracy” 59 University of Chicago Law Review 195 (1992) (available on line)

Mar 18 (T):Establishment Clause II: Religion in the Modern Welfare State

Committee for Public Education & Liberty v. Nyquist (BLBAS, 1746-1756

Douglas Laycock, “A Survey of Religious Liberty in the United States” (BLBAS, 1756-1759)

Zelman v. Simmons-Harris (BLBAS, 1759-1779

Locke v. Davey (BLBAS, 1779—1786)

Mar 20 (R):In Class Mid-term Examination

Mar 25 and 27 (T) and (R): No class meetings — Spring Break

IV. Equal Protection of the Laws

Apr 1 (T):Equal Protection for African-Americans and Women in the Nineteenth Century

Strauder v. West Virginia (BLBAS, 351-357)

Plessy v. Ferguson (BLBAS, 357-373)

Bradwell v. Illinois (BLBAS, 337-339)

Minor v. Happersett (BLBAS, 340-346)

Apr 3 (R):Justifying Brown and Bolling

Brown v. Board of Education and Bolling v. Sharpe (BLBAS, 893-932)

Alexander Bickel, “The Judgment of this Court” from The Least Dangerous Branch, 235-273 (on reserve)

Bruce Ackerman, “The Possibility of Interpretation” from We the People, Vol. 1: Foundations, 131-162 (on reserve), esp. 142-150.

Apr 8 (T):The Antidiscrimination Principle and the “Suspect Classification” Standard

Loving v. Virginia (BLBAS, 956-966)

Korematsu v. United States (BLBAS, 966-981)

Paul Brest, “In Defense of the Antidiscrimination Principle” (BLBAS, 981-990)

Apr 10 (R):“Preferential” Treatment for Racial Minorities

Regents of the University of California v. Bakke (BLBAS, 1071-1077)

Affirmative Action and the Original Understanding (BLBAS, 1114-1120)

Grutter v. Bollinger (BLBAS, 1120-1142)

Gratz v. Bollinger (BLBAS, 1142-1151)

Apr 15 (T):Sex Equality and the Equal Protection Clause Today

Frontiero v. Richardson (BLBAS, 1188-)

United States v. Virginia (BLBAS, 1229-)

V. Fundamental Rights and the Due Process Clause

Apr 17 (R):The Modern Revival of Substantive Due Process

Antecedents of Fundamental Rights Adjudication (BLBAS, 1339-1342)

Griswold v. Connecticut (BLBAS, 1342-1353)

Eisenstadt v. Baird (BLBAS, 1353-1355)

Roe v. Wade (BLBAS, 1387-1419)

Apr 21 (M):Equal Protection Clause paper due at noon in my office (Diamond 261)

Apr 22 (T):Justifications for Substantive Due Process Adjudication

Bruce Ackerman, “The Possibility of Interpretation” from We the People, Vol. 1: Foundations, 131-162 (on reserve)

Robert H. Bork, “Neutral Principles and Some First Amendment Problems” from Rakove, ed. Interpreting the Constitution, 197-212 (on reserve)

Ronald Dworkin, “The Concept of Unenumerated Rights” 59 University of Chicago Law Review 381 (1992) (available on line)

Richard A. Posner, “Legal Reasoning From the Top Down and From the Bottom Up: The Question of Unenumerated Constitutional Rights,” 59 University of Chicago Law Review 433 (1992) (available on line)

Apr 24 (R): Abortion

Planned Parenthood of Pennsylvania v. Casey (Blbas, 1419-1457)

Stenberg v. Carhart (BLBAS, 1457-1465)

Apr 29 (T): Suicide and Euthanasia

Lawrence Solum, Ronald Dworkin, and John Finnis, “Euthanasia, Morality, and the Law” 30 Loyola of Los Angeles Law Review 1465 (1997) (available on line)

Cruzan v. Director, Missouri Department of Health (BLBAS, 1569-1579)

Washington v. Glucksberg and Vacco v. Quill (BLBAS, 1579-1592)

May 1 (R):Sexual Orientation and Privacy

Bowers v. Hardwick (BLBAS, 1465--1482)

Romer v. Evans (BLBAS, 1505-1518)

Lawrence v. Texas (BLBAS, 1482-1505)

Randy Barnett, “Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas” Cato Supreme Court Review (2003) (available on line)

May 6 (T): Same-Sex Marriage

Goodridge v. Department of Public Health (BLBAS, 1545-1568)

Jonathan Rauch, “Gay Marriage is Risky, but Banning it is Riskier” The National Journal (May 15, 2004) (available on line)

Susan Shell, “The Liberal Case Against Gay Marriage” The Public Interest (Summer 2004) (available on line)

May 8 (R):Conclusion

May 12 (M):Substantive Due Process paper due at noon in my office (Diamond 261)

A comprehensive final examination will be held at the scheduled time