Civil Liberties is designed to introduce students to a uniquely American, and to some ways of thinking, a wonderfully naive contribution to politics: The written specification of individual liberties and rights that citizens possess and can juridically enforce against the state.  Civil Liberties is not, howev­er, a course on law.  It is instead a course in political science about law, or a course that has as its subject the relationship of law to the most funda­mental sorts of questions about politics.

During the semester, we shall see that most of the serious difficulties (and there are many) in the politics of civil liberties arise from conflicts be­tween our commitments to two or more positive values.  There are, for example, inevitable and recurrent conflicts (despite our attempts to ignore them) between the values of liberty and equality.  As Felix Frankfurter once wrote, these and other such conflicts are "what the Greeks thousands of years ago recognized as a tragic issue, namely the clash of rights, not the clash of wrongs."  In this course, we examine these clashes in light of the broader philosophical and institutional problems of the constitutional order.  I hope to show that constitutional "answers" to problems like those of abortion, freedom of speech, and affirmative action require a coherent understanding of the Constitution, and of the assumptions it makes about human nature and the proper ends of government and civil society.

We will, therefore, examine the doctrinal development of specific liberties and rights, such as due process and privacy, but we shall consider them in a broader theoretical context.  We shall want to know what overall conception of liberties, rights, and governmental powers most nearly reflects and promotes our best understanding of the Constitution and the polity it both constitutes and envisions.  In addressing these issues we will confront a welter of difficult and controversial questions.  It is unlikely that we will succeed in our attempts to answer them fully or finally.  What we can hope to achieve, however, is an improved and more sophisticated appreciation of the importance (or not) of our commitment to civil liberties, and of the sacri­fices we must make if we choose to honor that commitment.

Reading court cases is, for most of you, a new experience. Unfortunately, it is not often (at least initially) a very pleasant experience.  You may find the reading a bit easier if you bear in mind the following inquiries: 

            a. SUBSTANCE.  What is the "law" after the case was decided?  What is the holding of the judges in the case?  Is it consistent with prior cases?  How does the case fit into the "doctrine" on this subject matter? 

            b. ASSUMPTIONS.  What assumptions does the opinion make to support its argument? What does it assume, for example, about the Constitution?  About human nature?  About the framers?  Are these assumptions consistent with the rest of the argument? Where is the reasoning deficient, unsupported, or im­plausible? 

            c. HISTORY.  It is quite possible to see judicial opinions as political artifacts, as "period pieces" that value ideas quaintly idealistic or long since tarnished.  Is history a relevant source of constitutional meaning? 

            d. JUDICIAL ROLES. Almost every significant case in civil liberties must come to terms with questions about the proper role of the judiciary in a constitutional democracy.  As we shall see throughout the course, questions about relative institutional competencies are central to a complete under­standing of the constitutional order. 

            e. POLITICAL THEORY. Serious controversies in civil liberties require of judges that they possess a conception of the nature of the American political system and the importance of civil liberties to that system.  Is that concep­tion--whether explicit or implicit--consistent with the result in the case?  Is it coherent?  Is it desirable?

Required:   

The primary text for this course is Kommers, Finn & Jacobsohn, American Constitutional Law: Essays, Cases, & Comparative Notes, 2d ed. (Rowman & Littlefield, 2004).  Please be careful to purchase the second edition. 

In addition, please purchase or download: Hamilton et al., The Federalist Papers. any edition 

Recommended: 

van Geel, Understanding Supreme Court Opinions. (2d ed.)

There are two short (4-6 pages) papers required in this course. I will distribute the first paper topic in class on February 12. The paper will be due in class on March 4. 

 I will distribute the second paper topic in class on March 25. It will be due in class on April 15.

Each short paper is worth 25% of your course grade.   

There will be a final examination at a time and place to be determined by the Registrar’s Office. The final examination is worth 30% of your course grade. 

Class participation is worth 20% of your course grade.

Introduction & Administravia

Assigned:   The Constitution of the United States of America                                   
KFJ, chapters 1 & 2                                   
Bork, "Tradition & Morality in Constitutional Law"                                   
Brennan, "The Constitution: Contemporary Ratification"

The Rise of Judicial Power           

Assigned:  
KFJ, chapter 3

Recommended:                             
Arkes, Beyond the Constitution                           
Burgess, The Contest for Authority                            
Snowiss, Judicial review and the Law of the Constitution                            
Fisher, Constitutional Dialogues

The Bill of Rights & Incorporation 

Assigned:
KFJ, chapter 9

Recommended: 
Richard Cortner, The Supreme Court and the Bill of Rights.
Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights”?                                    Michael Curtis, No State Shall Abridge.

Liberty and the Once (And Future?) Right to Property           

Assigned:
KFJ, chapter 10           

Recommended:
Epstein, Takings                            
Horwitz, The Transformation of American Law                            
Ackerman, Property & the Constitution                            
MacPherson, "Human Rights as Property Rights"                            
Radin, "Property & personhood"                            
Siegen, Economic Liberties & the Constitution

The Right to Privacy           

Assigned: 
KFJ, chapter 11           

Recommended:
Dworkin, Taking Rights Seriously                            
Grey, "Eros, Civilization, and the Burger Court"                            
Ely, "The Wages of Crying Wolf: Roe v. Wade"                            
Glendon, Abortion & Divorce in Western Law                            
Allen, Uneasy Access: Privacy for Women                            
Brill, Nobody's Business                            
Dworkin, Life's Dominion                            
Garrow, Liberty & Sexuality

Privacy, II           

Assigned:
KFJ, Chapter 11

Freedom of Speech, I           

Assigned: 
KFJ, chapter 12           

Recommended:
Fish, There's No such Thing as Free Speech                            
Schauer, Free Speech                            
Bollinger, The Tolerant Society                            
Levy, Emergence of a Free Press                            
Shiffrin, The First Amendment, Democracy, and Romance                            
Greenawalt, Fighting Words

Freedom of Speech, II           

Assigned:
KFJ, chapter 12 (continued)           

Recommended:
Meiklejohn, Free Speech & its Relation to Self-Government                            
Davis, Decisions & Images

The Religion Clauses, I           

Assigned: 
KFJ, chapter 13           

Recommended:
Locke, Letter on Toleration                            
Choper, Securing Religious Liberty                            
Howe, The Garden & the Wilderness                            
Carter, The Culture of Disbelief                            
Levy, The Religion Clauses                            
Richards, Toleration & The Constitution                            
Smith, Foreordained Failure

The Religion Clauses, II           

Assigned: 
KFJ, chapter 13 (continued)

The Equal Protection Clause—Race           

Assigned:
KFJ, chapter 14           

Recommended: 
Dworkin, Taking Rights Seriously                           
Fiss, "Groups & the Equal Protection Clause"                             
Kluger, Simple Justice                           
Gunther, "In Search of an Evolving Doctrine"                            
Ely, "The Constitutionality of Reverse Discrimination"

The Equal Protection Clause—Gender           

Assigned:
KFJ, chapter 15           

Recommended:
Baer, The Fourteenth Amendment                                   
VanBurkleo, “Belonging to the World