Civil Liberties

Research tips

The Equal Protection Clause does not grant voting rights to aliens because the Supreme Court distinguishes political rights, which belong to citizens, and other legal protections that apply to all "persons". The government reserves the right to participate in democratic processes for citizens, and courts generally only require a rational basis for the distinction, not strict scrutiny. 

For Monday:

• Tocqueville, pp. 174-179, 189-203,  513-524.
• Watch https://youtu.be/FZVfTCBUkgM?si=eeSQkD1nL-6IlG1Y 

Brown v. Board of Education and originalism. Michael McConnell (P  `06):  "Large majorities of both houses of Congress, and even larger majorities of supporters of the Fourteenth Amendment, concluded that it forbade dejure segregation of public schools. That fact puts to rest the notion that the Supreme Court had to disregard the original meaning of the Amendment in order to "do the right thing" in Brown."

Voting Rights and War

• Women's suffrage, World War I, and 19th Amendment
• Indian Citizenship Act
• The 26th Amendment and Vietnam

Inside door of the Supreme Court:

Thirty-seven percent tell Gallup that God created humans 10,000 years ago.

International comparisons

Edwards v Aguillard  -- background starting at 7:20

Amicus briefs

Decision and opinions

Edwards v. Aguillard oral argument (start around 26:00)

From Topkis's comments -- an example of the value of slow reading:

Now, this bill was of course drafted by a theologian, or somebody versed in apologetics.

There's an amusing bit of evidence on that subject in the very language of the bill.

The bill keeps using... the Act keeps using the term "evidences" in the plural.

We lawyers never speak of "evidences" in the plural. We speak of "evidence", the singular.

And I got nagged by it, and I looked it up the other day.

And of course the only dictionary reference to "evidences" is to Christian apologetics: the evidences for Christianity. This is a matter of theological disputation.

Tocqueville (p. 267): "Nothing could be more obscure and out of reach of the common man than a law founded on precedent…. A French lawyer is just a man of learning, but an English or an American one is somewhat like the Egyptian priests, being, as they were, the only interpreters of an occult science."

In this case, Lemon v. Kurtzman

• must have a secular purpose
• must have a principal or primary effect that does not advance or inhibit religion, and 
• cannot foster an excessive government entanglement with religion.

Bye, bye, Lemon v Kurtzman

The Due Process Clause and Selective Incorporation (p.93-94)

The Bill of Rights

Amendment I  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.  

• Free speech, libel. and slander: keep in mind the difference between civil and criminal cases.

Amendment II  A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. (Rep. Chip Roy.)

 Amendment III No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

• The Exclusionary Rule (p. 107) and A 1971 movie that suggests public attitudes during the Nixon era.

Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

• News you can use: DEALING WITH LAW ENFORCEMENT

Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

• Mike Ehrmantraut asserts his right to a lawyer.

Amendment VII In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

• Privacy and test cases
• Roe and Dobbs

Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Air Midterm 2025

Relax. This “air midterm” does not count toward your grade, and you do not even turn it in. Instead, use it to appraise your own progress in the course. Try out this practice test, either in your head or on paper. If you flounder, then you should take more care with class sessions and assigned readings.

I. Identifications In a short paragraph each, explain the meaning and significance of the following items. What is fair game for an identification?

• Items that we have discussed in class or on the blog;
• Items that appear in bold or italics in the readings;
• Items that cover several pages in the readings.

Items

• “Energy in the executive”
• Prosecutorial discretion
• Self-evident truths
• Moeurs
• Richard Henry Lee
• Nuclear Freeze
• The 25th Amendment
• The Progressive Theory of the Constitution
• Mitch McConnell
• "Civil Religion"

II. Short essays. In a couple of paragraphs each, answer the following.

With reference to Amar, explain the "republic or democracy" distinction

Explain the significance of the phrase "Save Social Security first."

“[A]nd to render them, by different modes of election and different principles of action, as little connected with each other as their common functions and their common dependence on the society will admit.” Explain.

"He has waged cruel war against human nature itself, violating it's [sic] most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. " Explain.

III. General Essays 

• According to Tocqueville, what are the main causes that maintain a democratic republic in the United States? Explain.
• Explain the major arguments for and against originalism.
• Explain the impact of the Three-Fifths Compromise on political power in antebellum America.
• Explain how a president exerts influence over Congress.

Bonus questions.  Very briefly identify the following:

• Linda McMahon
• Brooke Rolllins
• Lee Zeldin
• Susie Wiles
• Patricia Macica Smaldone

Research Paper Fall 2025

 Choose one of the following:

1. Justice Kagan’s Spider-Man quotation raises a Tocquevillian question: Who guards the guardians?

• Compare Federalist 78 with Wurman ch. 6 and Tocqueville (pp. 99–105, 262–276).
• Choose one decision that the Supreme Court has made or reversed during your lifetime. (Do not choose Dobbs, which reversed Roe.)
• Look at critiques of that decision. Explain how its reasoning reflects or departs from Hamilton’s and Tocqueville’s ideas about judicial legitimacy and restraint.

2. Few powers test the legitimacy of law more deeply than the power to take a life.

• Begin with Federalist 78 and Tocqueville’s discussions of judicial authority and moral order.
• Analyze one Supreme Court case on the death penalty—for example, Furman v. Georgia (1972), Gregg v. Georgia (1976), Atkins v. Virginia (2002), or Glossip v. Gross (2015).
• Then investigate how capital punishment operates today in one U.S. state of your choice: consult its department of corrections or court website for current laws, procedures, or recent executions.
• Finally, relate your findings to a moral or civic argument about justice or equality from our readings.

3. Candace Valenzuela’s simile of childbirth suggests that campaigning is both painful and creative.

• Read Malcolm X’s “Ballot or the Bullet” alongside Madrid’s The Latino Century excerpts.
• Interview (in person or by phone, Zoom, or email) someone who has volunteered or worked in a recent campaign—local, state, or federal. Do not interview yourself or a member of this class.
• Use that testimony, plus Rauch’s “Political Realism” and other sources, to discuss how individuals benefit from working in campaigns, and how campaigns and party organizations serve (or disserve) the broader public interest.
• Evaluate whether modern identity-based appeals strengthen or weaken democratic accountability.

4. Across American history, protest movements have struggled to turn moral energy into enduring political influence.

• Compare Martin Luther King Jr.’s “Letter from Birmingham Jail” with Saul Alinsky’s Rules for Radicals (pp. xiii–97, 125–164).
• Pick a recent protest movement (after 2015, but not including No Kings).
• Examine its evolution using primary materials such as social-media posts, manifestos, nonprofit filings, or contemporary news coverage.
• Assess how effectively the movement turned public demonstration into institutional or policy change—and what that reveals about the possibilities and limits of democratic protest..

Whichever option you choose, use primary sources (e.g., judicial opinions, transcripts of oral arguments, speeches) and scholarly sources (e.g., articles in academic journals and law reviews).

Include at least one visual or data exhibit (e.g., image of a flyer, campaign finance chart, protest map) with a caption explaining its relevance.  It will not count against the page limit.

In the weeks ahead, you will make very brief (5-minute) oral presentations on your research.

Requirements

• Length: Essays must be double-spaced and no more than five pages long. I will not read past the fifth page.
• Format: Submit as a Word document only. Do not submit pdfs or Google docs. Cite all sources with endnotes (not footnotes) in Chicago/Turabian style. Endnote pages do not count toward the page limit.
• AI Policy: You may use AI to locate primary and secondary sources, but you may not copy AI-generated summaries or arguments into your essay. Misrepresenting AI output as your own work is plagiarism and may result in referral to the Academic Standards Committee.
• Writing: Watch your spelling, grammar, diction, and punctuation. Errors will count against you. Read Strunk & White and watch my writing lecture before drafting.
• Deadline: Upload essays to Canvas by 11:59 PM, Friday, November 21 (revised deadline). If you have trouble with Canvas, email it to me as a Word attachment. I reserve the right to dock essays a grade point for one day’s lateness, and a full letter grade thereafter.

Civil Rights and Liberties

• Research Assignment
• Air Midterm

For next time: Edwards v. Aguillard, which illustrates several distinctive features of American government and political culture:

• The influence of religion;
• The structure of federalism;
• and of course, the role of courts.

You need not look up the many references to precedent:  just be aware that SCOTUS opinions rely heavily on previous cases.

• Tocqueville (p. 270): “There is hardly a political question in the United States which does not sooner or later turn into a judicial one”
• Judging and history (Wurman, ch. 6) and sense v. application (pp. 38-40)

 Civil Liberties and Civil Rights: The Difference

Why did Hamilton originally reject a bill of rights?

Seneca Falls

• Frederick Douglass was there
• And he was speaking out for the rights of people from China -- in 1867

Civil War Amendments

• Amendment XIII Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

• Amendment XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

• Amendment IV, Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
• Trump v. Anderson
• Amendment XV Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Timeline of Civil Rights

• FDR and A. Philip Randolph (a not-very-audible audio) and the FEPC
• Desegregation of the armed forces
• Brown v. Board of Education and originalism
• The Cold War and Civil Rights
• 1964 Civil Rights Act
• 1965 Voting Rights Act
• ADA
• Obergefell

Voting Rights and War

• Women's suffrage, World War I, and 19th Amendment
• Indian Citizenship Act
• The 26th Amendment and Vietnam

Selma the movie(at 2:00): vs. the actual conversation between LBJ and MLK (first few minutes, skip to 6:00)

 

The Law

 The true story of the temporary insanity defense

Research paper assignment by Monday class. Suggestions welcome!

For next time:

Wurman, ch. 7-8, epilogue.

Federalist # 84

The Seneca Falls Declaration,  http://www.fordham.edu/halsall/mod/senecafalls.asp

Two words to know about the law:  legal fees.

A couple of basic distinctions

Statutes, Regulations, Judge-made law

The Dangers of the Law

• Tocqueville (p. 267): "Our written laws are often hard to understand, but everyone can read them, whereas nothing could be more obscure and out of reach of the common man than a law founded on precedent.”
• Prosecutorial discretion
• Three felonies a day
• Costs
• Most district attorneys  are elected officials.
• "In most developed countries, particularly in continental Western Europe, Canada, and Japan, prosecutors are resolutely nonpolitical and nonpartisan. They are expected to make decisions about individual cases on their merits, without regard to public attitudes, opinions, and emotions or to politicians’ preferences or priorities. In the United States, however, local chief prosecutors in 45 states are elected (Perry 2006).1 In the federal system, US attorneys are appointed on the basis of partisan and sometimes ideological criteria. American prosecutors sometimes openly and unashamedly take media reactions, public opinion, and political considerations into account when deciding what cases to prosecute and how to handle them."
• Most sheriffs are elected officials.

Trials and Juries:  Anatomy of a Murder

• Less than three percent of criminal cases go to trial.  The rest end in plea deals.
• The "joy" of jury duty
• My jury experience
• Tocqueville (p. 275):

Juries invest each citizen with a sort of magisterial office; they make all men feel that they have duties toward society and that they take a share in its government. By making men pay attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.

Juries are wonderfully effective in shaping a nation’s judgment and increasing its natural lights. That, in my view, is its greatest advantage. It should be regarded as free school which is always open and in which each juror learns his rights, comes into daily contact with the best-educated and most-enlightened members of the upper classes, and is given practical lessons in the law, lessons which the advocate’s efforts, the judge’s advice, and also the very passions of the litigants bring within his mental grasp. I think that the main reason for the practical intelligence and the political good sense of the Americans is their long experience with juries in civil cases.

Civil and criminal cases

• Even if they win acquittal in a criminal cases, defendants might still face civil suits. See O.J. Simpson
• Multiple civil suits
• Trump abuse of E. Jean Carroll
• Trump defamation of E. Jean Carroll

Appellate Courts

• The Structure
• Guide to Supreme Court decisions
• The Senate and Supreme Court nominations
• SCOTUS demographics
• Tocqueville (p. 270): “There is hardly a political question in the United States which does not sooner or later turn into a judicial one”  
• One example of many:  the travel ban.
• Judging and history (Wurman, ch. 6) and sense v. application (pp. 38-40)

Executive Branch II

Questions on the assignment?  Turabian guide.

Monday is fall break.  Read these items for next Wednesday.

• Tocqueville, pp. 99-105, 262-276
• Federalist # 78.
• Wurman, ch. 6.
• Also watch this clip from the 1959 movie Anatomy of a Murder. Read background here, which explains why law school profs show this clip in courses on criminal law.  Note: the scene includes brief references to sexual assault.

From last time: 

Presidential tenure...

Broken Links:

• Stephen Hadley
• Mike Mullen, chair of JCS
• Regional and functional combatant commanders

Government employment

• Most federal employees are in the executive branch.
• Most executive-branch employees are not political appointees.  (Here is a guide to jobs for political appointees.)

Presidents gave relatively few speeches in the 18th and 19th centuries. Washington delivered his Farewell Address in writing.

• Norms were different.
• Technology did not allow the president's voice to reach many people

Households with Radio Sets:

1922	60,000
1927	6,750,000
1932	18,450,000
1937	24,500,000
1942	30,600,000

Source: Historical Statistics of the United States, 796.

FDR and the radio:  Day of Infamy (skip to 4:05).

Data: Public activities

On March 8, 1983, President Reagan spoke to the National Association of Evangelicals in Orlando, He expressed his views on the Soviet Union, famously calling it an "evil empire." He defended the Judeo-Christian traditions against the Soviet Union's totalitarian leadership and lack of religious faith, saying that these differences were at the heart of the conflict between the two nations.

Click here to see the typescript of the speech.  

This document makes clear that Reagan did not simply read the words before him:  he played a very active part in writing the speech itself.  One amusing sidelight:  speechwriter Tony Dolan included a spurious quotation from Alexis deTocqueville -- which Reagan changed:

Here is the official text.

And here is video:

 Reagan, religion, and the spurious Tocqueville line.

And of course, the "evil empire."

Clinton and Social Security (at 37:30)

Obama and Religion:

Presidential approval and the limits of the bully pulpit.

Executive Branch I

Questions on the assignment? 

Office hour today: 1:15-2:15

For next time:

• Reagan "Evil Empire" speech
• Noonan memoir (on Canvas)

On a lighter note... The presidency clip that everybody always remembers long after they have forgotten The Federalist.

The Constitution and Federalist

ARTICLE II 

The 25th Amendment

Presidential Succession Act

Federalist 70 "The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers."

Federalist 71. "It is one thing to be subordinate to the laws, and another to be dependent on the legislative body.

Federalist 73"But the convention have pursued a mean in this business, which will both facilitate the exercise of the power vested in this respect in the executive magistrate, and make its efficacy to depend on the sense of a considerable part of the legislative body. Instead of an absolute negative, it is proposed to give the Executive the qualified negative already described. This is a power which would be much more readily exercised than the other."

Presidential staff, the Waldman reading, and democratic writing

Congress checking the president: NAIL:

• Nominations
• Appropriations
• Investigations/Impeachment
• Legislation

Informal pressure:  Harry Reid and Gates

The presidency and national security:

Federalist 8: "It is of the nature of war to increase the executive at the expense of the legislative authority."

Democracy in America: "If executive power is weaker in America than in France, the reason for this lies perhaps more in circumstances than in the laws. It is generally in its relations with foreign powers that the executive power of a nation has the chance to display skill and strength. If the Union’s existence were constantly menaced, and if its great interests were continually interwoven with those of other powerful nations, one would see the prestige of the executive growing, because of what was expected from it and of what it did."

Complexity of the national security establishment

Broken Links:

• Stephen Hadley
• Mike Mullen, chair of JCS
• Regional and functional combatant commanders

Gates

The secretary of defense is second only to the president in the military chain of command (neither the vice president nor the chairman of the Joint Chiefs of Staff is in the chain at all), and any order to American forces worldwide goes from the president to the secretary directly to the combatant commanders (although as a practical matter and a courtesy, I routinely asked the chairman to convey such orders). More important than any of the meetings, the secretary makes life-and-death decisions every day—and not just for American military forces. Since 9/11, the president has delegated to the secretary the authority to shoot down any commercial airliner he, the secretary, deems to be a threat to the United States. The secretary can also order missiles fired to shoot down an incoming missile. 

 Nuclear war steps

Nuclear war

Tom Nichols: "In 1973, an Air Force nuclear-missile officer named Harold Hering asked a simple question during a training session: “How can I know that an order I receive to launch my missiles came from a sane president?” The question cost him his career. Military members are trained to execute orders, not question them.