Course Description

This course is an introduction to United States constitutional law and its role as a source of principles for addressing social problems. Issues such as economic regulation, fair procedure, religious freedom, free speech, privacy, federalism, judicial review, and separation of powers will be examined. Attention will also be given to the social functions of the Supreme Court, the interplay of political-economic climate and Supreme Court decision making, the Supreme Court as a political institution, and the vagaries of constitutional interpretation.

Constitutional law is concerned with the organization of the relationship between the government and the individual, and the potential for unfair treatment at the hands of the government is the basis for myriad constitutional law claims. Consequently, issues of diversity, social and economic justice, and ethics and values are naturally integrated within the course, and the implications of these claims for racial, ethnic, sexual, and political minorities are examined in virtually every topic below. These issues also will be explored in our discussions about the Supreme Court as an institution.

Course Objectives

The course’s learning objectives are designed to enable students to:

1. employ methods of analysis that illustrate the decision-making approaches used by the Supreme Court;

2. assess how the Supreme Court adheres to, or departs from, the doctrine of stare decisis and to evaluate the consequences for the development of constitutional law doctrine;

3. analyze Supreme Court decisions in a way that reveals the Court’s appraisal of its functions and scope of authority; and

4. differentiate between arguments regarding the Supreme Court as the sole arbiter of the meaning of the United States Constitution.

Required Texts

David Kairys, With Liberty and Justice for Some (New York, NY: New Press, 1990)
Robert G. McCloskey, The Supreme Court, 2^nd edition, (Chicago, Ill: U. of Chicago, 1994)
David M. O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997)

Recommended Texts

Derrick Bell, Race, Racism and American Law
Stephen L. Carter, The Culture of Disbelief, (New York, NY: Anchor Books, 1993)
Leon Higgonbotham, In theMatter of Color
David Kairys, With Liberty and Justice for Some (New York, NY: New Press, 1990)
Susan Lawrence, The Poor in Court (Princeton, NJ: Princeton U. Press, 1990)
Bernard Schwartz, Decision: How the Supreme Court Decides Cases, (New York: Oxford Press, 1996)
Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court, (Cambridge: Harvard University Press, 1999)

Course Outline

Jan 23 Introduction

Jan 30 A framework for understanding constitutional decision making: approaches to constitutional interpretation

Robert G. McCloskey, The Supreme Court, 2^nd edition, (Chicago, Ill: U. of Chicago, 1994), chap. 1-3
David O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997) pp. 23-39; 46-60; 64-96; 100-135; 158-177; 182-205

Mabury v. Madison
Eakin v. Raub
Goldwater v. Carter
Linkletter v. Walker
Griffith v. Kentucky

Feb 6 Implied fundamental rights: economic rights and American capitalism:  the court’s assumptions about the expansion of capitalism and the impact on their decision making; unfair treatment within the context of economic regulation; nationalization of Bill of Rights

David O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997), pages 218-219; 252-284; 299-311;328-331

Butchers' Benevolent Association v. Crescent City Livestock Landing & Slaughterhouse Co. (The Slaughterhouse Cases)
Munn v. Illinois
Lochner v. New York
West Coast Hotel Co. v. Parrish
Slaughterhouse Cases
Rochin v. California

Feb 13 TBA

Feb 20 The "Due Process Revolution" -- rise, demise, revival

David O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997), pages 348-370
Photocopied materials

Foucha v. Louisana
County of Sacramento v. Lewis

Feb 27 Freedom of expression and association:  judicial approaches to analyzing first amendment issues

David O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997), pages 371-421

Schenk v. United States
Gitlow v. People of the State of New York
Dennis v. United States
Brandenberg v. Ohio
Rust v. Sullivan

Mar 6 Freedom of expression: obscenity, pornography and offensive speech; limits on freedom of expression and the impact on sexual harassment; gender-based perspectives on obscenity and offensive speech; offensive speech and racial discrimination; fighting words and offensive speech

David O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997), pages 421-428; 433-450; 455-463; 478-489; 494-503
Stanley v. Georgia
Miller v. California
Paris Adult Theatre I v. Sullivan
New York v. Ferber
Cohen v. California
Federal Communications Commission v. Pacifica Foundation
Reno v. American Civil Liberties Union

Mar 20 Libel: the categorical scheme for problem solving and its impact

David O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997), pages 509-535

The New York Times Company v. Sullivan
Gertz v. Robert Welch, Inc.
Masson v. New Yorker Magazine
Cox Broadcasting v. Cohn

Mar 27 Symbolic speech and speech-plus-conduct and freedom of association: limits on freedom of expression, particularly where so-called "hate speech" is involved; first amendment protections of racial, sexual and ethnic minorities

David O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997), pages 612-654
West Virginia State Bd. Of Education v. Barnette
Tinker v. Des Moines Independent Community School District
Texas v. Johnson
NAACP v. Alabama
Roberts v. United States Jaycees

Apr 3 Dis-establishment and free exercise of religion

David O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997), pages 655-679; 697-705; 736-808
Lemon v. Kurtzman, Earley v. DiCenso & Robinson v. DiCenso
Rosenberger v. The Recotr and Visitors of the U. of Virginia
Agostini v. Felton
Sherbert v. Verner
Wisconsin v. Yoder
Employment Div., Dept. of Human Resources of Oregon v. Smith
Church of the Lukumi Babalu Aye v. City of Hialeah
City of Boerne v. Flores

Apr 10 Guarantee against self-accusation: coerced confessions

David O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997), pages 970-1006; 1020-1032

Miranda v. Arizona
In Re Gault
Arizona v. Fulminante
Winthrow v. Williams

Apr 17 Right to counsel and other procedural guarantees; and indigents and the criminal justice system

David O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997), pages 1043-1067; 1100-1103
Powell v. Alabama
Gideon v. Wainwright
Bordenkircher v. Hayes
Bounds v. Smith, 430 U.S. 817 (1977)
Lewis v. Casey, 116 S. Ct. 2174 (1996)

Apr 24 Equal protection of the laws: nonracial classifications: gender-based discrimination; discrimination against gays and lesbians; wealth, poverty and illegitimacy; alienage and age; and mental illness and retardation;

David O’Brien, Constitutional Law and Politics: Civil and Political Rights 4^th edition, (New York, NY: Norton, 1997), pages 1277-1286; 1449-1460; 1471-1487; 1489-1499; 1503-1536
Frontiero v. Richardson
United States v. Virginia
Romer v. Evans
Shapiro v. Thompson
San Antonio School District v Rodriguez
Plyer v. Doe
Heller v. Doe

May 3 Critique of the conservative Supreme Court decision making process: the Court’s discrepant assumptions about judicial activism and the implications for issues that have an impact on racial and ethnic minorities

David Kairys, With Liberty and Justice for Some (New York, NY: New Press, 1990)

Course Requirements

Collectively, the following assignments are designed to provide in-depth treatment of the cases. This approach will enable us to dissect the doctrinal coherence of areas of law and thereby reveal, consistent with our determination to focus on HOW the Court arrives at its decisions, the factors that contributed to the Court’s decision. From this will emerge opportunities to evaluate the implications for both doctrinal and case law development. Moreover, this approach should maximize opportunities to weigh in on the role of the Court as a political and social institution.

1. Class participation: The class will be built around the instructor raising many questions, and it is anticipated that this move will promote both critical thought and active participation. Given the amount of attention we will devote to doctrinal analysis in relation to a particular area of constitutional law, unreserved sharing of perspectives will enhance the depth of our understanding of the concepts.

2. Each of you will assume responsibility for "briefing" several judicial decisions throughout the course, according to a schedule that I will distribute to you. As part of this responsibility, you will lead the class through the questions posed in relation to the case, as well as identify any questions and issues you deem important.

3. A paper (10 pages), built around the following:

The U. S. Supreme Court decided four major welfare reform cases between 1968 and 1971: King v. Smith, Shapiro v. Thompson, Goldberg v. Kelly, and Wyman v. James. In the light of the recent welfare reform legislation (Personal Responsibility and Work Opportunity Reconciliation Act of 1996, P.L. 104-193), are these four reform cases durable (i.e., likely to remain good law)? Why? Why not? DUE: April 24^th.

4. mid-term examination (take home)

5. You are a Justice of the United States Supreme Court -- congratulations! you look marvelous in that black robe. You have been asked to decide the facts on the attached sheet, using Foucha v. United States as your precedent. Write your opinion, (3-4 pages, max.) deciding the party’s claim that he has been denied due process. Due: TBA

The Kansas Legislature enacted the Sexually Violent Predator Act (Act) in 1994 to grapple with the problem of managing repeat sexual offenders. Although Kansas already had a statute addressing the involuntary commitment of those defined as "mentally ill," the legislature determined that existing civil commitment procedures were inadequate to confront the risks presented by "sexually violent predators." In the Act's preamble, the legislature explained:

As originally structured, the Act's civil commitment procedures pertained to: (1) a presently confined person who, like Hendricks, "has been convicted of a sexually violent offense" and is scheduled for release; (2) a person who has been "charged with a sexually violent offense" but has been found incompetent to stand trial; (3) a person who has been found "not guilty by reason of insanity of a sexually violent offense"; and (4) a person found "not guilty" of a sexually violent offense because of a mental disease or defect. Sec. 59-29a03(a), Sec. 22-3221 (1995).

The initial version of the Act, as applied to a currently confined person such as Hendricks, was designed to initiate a specific series of procedures. The custodial agency was required to notify the local prosecutor 60 days before the anticipated release of a person who might have met the Act's criteria. Sec. 59-29a03. The prosecutor was then obligated, within 45 days, to decide whether to file a petition in state court seeking the person's involuntary commitment. Sec. 59-29a04. If such a petition were filed, the court was to determine whether "probable cause" existed to support a finding that the person was a "sexually violent predator" and thus eligible for civil commitment. Upon such a determination, transfer of the individual to a secure facility for professional evaluation would occur. Sec. 59-29a05. After that evaluation, a trial would be held to determine beyond a reasonable doubt whether the individual was a sexually violent predator. If that determination were made, the person would then be transferred to the custody of the Secretary of Social and Rehabilitation Services (Secretary) for "control, care and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large." Sec. 59-29a07(a).

In addition to placing the burden of proof upon the State, the Act afforded the individual a number of other procedural safeguards. In the case of an indigent person, the State was required to provide, at public expense, the assistance of counsel and an examination by mental health care professionals. Sec. 59-29a06. The individual also received the right to present and cross-examine witnesses, and the opportunity to review documentary evidence presented by the State. Sec. 59-29a07.

Once an individual was confined, the Act required that "the involuntary detention or commitment . . . shall conform to constitutional requirements for care and treatment." Sec. 59-29a09. Confined persons were afforded three different avenues of review: First, the committing court was obligated to conduct an annual review to determine whether continued detention was warranted. Sec. 59-29a08. Second, the Secretary was permitted, at any time, to decide that the confined individual's condition had so changed that release was appropriate, and could then authorize the person to petition for release. Sec. 59-29a10. Finally, even without the Secretary's permission, the confined person could at any time file a release petition. Sec. 59-29a11. If the court found that the State could no longer satisfy its burden under the initial commitment standard, the individual would be freed from confinement.

In 1984, Hendricks was convicted of taking "indecent liberties" with two 13-year-old boys. After serving nearly 10 years of his sentence, he was slated for release to a halfway house. Shortly before his scheduled release, however, the State filed a petition in state court seeking Hendricks' civil confinement as a sexually violent predator. On August 19, 1994, Hendricks appeared before the court with counsel and moved to dismiss the petition on the grounds that the Act violated various federal constitutional provisions. Although the court reserved ruling on the Act's constitutionality, it concluded that there was probable cause to support a finding that Hendricks was a sexually violent predator, and therefore ordered that he be evaluated at the Larned State Security Hospital.

Hendricks subsequently requested a jury trial to determine whether he qualified as a sexually violent predator. During that trial, Hendricks' own testimony revealed a chilling history of repeated child sexual molestation and abuse, beginning in 1955 when he exposed his genitals to two young girls. At that time, he pleaded guilty to indecent exposure. Then, in 1957, he was convicted of lewdness involving a young girl and received a brief jail sentence. In 1960, he molested two young boys while he worked for a carnival. After serving two years in prison for that offense, he was paroled, only to be rearrested for molesting a 7-year-old girl. Attempts were made to treat him for his sexual deviance, and in 1965 he was considered "safe to be at large," and was discharged from a state psychiatric hospital. App. 139-144.

Shortly thereafter, however, Hendricks sexually assaulted another young boy and girl--he performed oral sex on the 8-year-old girl and fondled the 11-year-old boy. He was again imprisoned in 1967, but refused to participate in a sex offender treatment program, and thus remained incarcerated until his parole in 1972. Diagnosed as a pedophile, Hendricks entered into, but then abandoned, a treatment program. He testified that despite having received
professional help for his pedophilia, he continued to harbor sexual desires for children. Indeed, soon after his 1972 parole, Hendricks began to abuse his own stepdaughter and stepson. He forced the children to engage in sexual activity with him over a period of approximately four years. Then, as noted above, Hendricks was convicted of "taking indecent liberties" with two adolescent boys after he attempted to fondle them. As a result of that conviction, he was once again imprisoned, and was serving that sentence when he reached his conditional release date in September 1994.

Hendricks admitted that he had repeatedly abused children whenever he was not confined. He explained that when he "gets stressed out," he "can't control the urge" to molest children. Id., 172. Although Hendricks recognized that his behavior harms children, and he hoped he would not sexually molest children again, he stated that the only sure way he could keep from sexually abusing children in the future was "to die." Id., at 190. Hendricks readily agreed with the state physician's diagnosis that he suffers from pedophilia and that he is not cured of the condition; indeed, he told the physician that "treatment is bull -." Id., at 153, 190 The jury unanimously found beyond a reasonable doubt that Hendricks was a sexually violent predator. The trial court subsequently determined, as a matter of state law, that pedophilia qualifies as a "mental abnormality" as defined by the Act, and thus ordered Hendricks committed to the Secretary's custody.

Hendricks appealed, claiming, among other things, that application of the Act to him violated the Federal Constitution's Due Process Clause.