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Department of Politics

361. Race, Sex & the Constitution
Public Law in the Era
of Gay Rights & Covert Racism

December 2012

Craig W. Allin, Ph.D., Instructor
Paul Waelchli, Consulting Librarian

NOVEMBER 30, 2012

The following Supplements to this Course Description can be found on the Web:

Calendar & Assignments Intellectual Integrity Accommodating Disabilities
Rules & Regulations Good Advice Photo Class Roster
Grades Documenting Sources Internet Research Links
Cole Library Index to Paper Comments Writing Studio


Web Syllabus: With its interactive links, hypertext seems the ideal medium for course syllabi. With a click, you can be at a site to which a paper syllabus could only refer. You can use it all on line and print whatever you want. Portions of this syllabus or its attachments make use of the portable document format (PDF). PDF files generally print better than HTML files. They offer exact visual replicas of printed pages comparable to printout from a color copier. They allow you to print selected pages, and they don't depend on your having any particular world processor. PDF is the dominant file type used for delivering facsimiles of paper documents, like court opinions and legislative reports, over the Internet. To read PDF files on your personal computer you need the Adobe Acrobat Reader, which you can download without charge from the publisher. This software is already loaded on most college-owned computers.

Feedback: Whether or not you are asked to complete a standardized course evaluation, I am interested in your comments and suggestions for improving the course, the readings, the assignments and this course description. Feel free to send comments as you think of them. E-mail:

Instructor: Craig W. Allin, Room 113, College Hall. Telephone: Office, (895-) 4278; Cell, 431-1100. E-mail:;

Office Hours: If I'm not in class with you, you can probably find me in my office. Feel free to make an appointment or just show up. To help you find me the current version of my schedule is available for your electronic inspection over the campus network if you are using Microsoft Outlook. This feature is not available with the free, bare-bones version called "Outlook Express."

  1. On the File menu, point to Open, and then click Other User's Folder.
  2. In the Open Other User's Folder box, click Name and select Craig Allin from the list.
  3. In the Folder box, select Calendar from the pull-down menu.

E-Mail Attachments: Please deliver your papers, take-home quizzes, and other formal submissions by means of e-mail attachments in either Word (*.doc, *docx) or Rich Text (*.rtf). Please use your own name as the file name.  Attach your file to an e-mail addressed to If you are unfamiliar with e-mail attachments, click here for instructions.

Classroom: South 10.

Schedule: See Course Calendar & Assignments.

Text Books: The following are available for purchase in the bookstore.

  • Daniel A. Farber, William N. Eskridge, Jr., and Philip P. Frickey. Cases and Materials on Constitutional Law: Themes for the Constitution's Third Century. 4th ed. St. Paul: West Group, 2009.
  • Gerald N. Rosenberg. The Hollow Hope: Can Courts Bring about Social Change? 2nd ed. Chicago: University of Chicago Press, 2008.
  • Note: The core text lists for $210, but you can rent it for $26.25/month direct from the publisher (who obviously does not know about OCAAT). Rental gets you instant access to the e-book.

Internet Resources: The Home Page for the Politics Department is at It contains a wealth of valuable information including programs and requirements of the Department of Politics; information about Politics Courses including course syllabi like this one; information about graduate schools and careers, and research links for politics, government, and law.

Synopsis: This is a legal policy seminar designed to explore Constitutional principles, including equal protection, privacy, and freedom of speech as they apply to issues of race, sex, and ethnicity. The seminar has four interrelated goals:

  1. To examine the Supreme Court's interpretation of these Constitutional principles and the various methodologies upon which the court has relied.

  2. To illuminate alternative interpretations by examining a broad range of interpretive methodologies and their consequences for women and people of color. Methodologies considered will include Textualism, Original Intent, Purposivist Theory, Representation Reinforcement, Republicanism, Pragmatism, and especially Radical Feminism and Critical Race Theory. We will accomplish the first two goals primarily through our study and discussion of Constitutional Law: Themes for the Constitution's Third Century by Farber, Eskridge, and Frickey.

  3. To examine the practical impact of Supreme Court decision-making in the broader political system. We will accomplish this primarily through our study and discussion of The Hollow Hope: Can Courts Bring about Social Change? by Rosenberg.

  4. To equip you to enter intelligently into the current policy debates over hot-topic issues involving racial discrimination, sex discrimination, equal opportunity, affirmative action, abortion, pornography, privacy rights, hate speech, political correctness, etc. We will accomplish this through our classroom discussions and through your research and writing. These issues are all difficult, and they are worth arguing in a setting that respects accuracy, intelligence, integrity, and difference and eschews the bumper stickers and sound bites that reduce political discourse to a rant. Don't be surprised if you leave this class less sure of what you think than you began. Certainty is often a product of ignorance.


  • Attendance & Class Participation: Students are expected to attend all classes and to complete all assignments prior to class time on the day for which they are assigned. You should read carefully and be prepared to discuss the assignments intelligently. As an extra inducement to thoughtful participation in class, 20% of the final grade attaches to that participation. To protect your right to make up any missed work, even officially excused absences must be communicated to me in advance. No specific portion of the course grade is assigned to attendance per se, but attendance is the minimum condition related to your participation grade.
  • Quizzes: There will be three quizzes covering the assigned reading and discussion. Each quiz will count for 10 percent of the course grade. Quizzes may or may not be announced in advance. For the purposes of quizzes you may bring and use unlimited notes and briefs so long as they are composed by you. Quizzes and preparation for quizzes are conducted on an honor system. In each instance, you will be required to certify that you have not accepted aid from another student, given aid to another student, or used notes or materials except those composed by you. Study groups and group preparation for quizzes are encouraged, but duplicated "group notes" or "group briefs" may not be used during quizzes.
  • Policy Paper & Seminar Report: Each student will complete a research paper and seminar report on an approved topic. See below for details. This component will count for 50 percent of the final course grade.
Policy Paper

Seminar Report

Policy Paper Rewrite
Class Participation


"He who knows only his own side of the case, knows little of that."
--John Stuart Mill, On Liberty (1859), chapter 2

OBJECTIVES: This assignment has four major objectives.

  1. To enhance your knowledge of a specific area of legal policy and your understanding of the political issues related to that area.
  2. To improve your knowledge of research methods and materials including especially scholarly sources, legal documents, and specialized indexes.
  3. To help you improve an important intellectual skill: writing a clear and convincing argument supported by reliable evidence.
  4. To enhance the class's knowledge of a specific area of legal policy by means of your report.

This is a complex and difficult assignment, and I would like each of you to do it well. To that end, I have broken the assignment down into pieces and provided explicit instructions about how you can maximize your success. Please read all the information that follows, and do your best to master this task one step at a time. I have tried to answer the most obvious questions here in writing, but obviously I have not answered all the possible questions. Please feel free to ask me for help along the way.

Assignment: Your job is to write a policy paper of 2500 to 4000 words exclusive of illustrations, notes, bibliography, appendices, etc. Because this is a course in constitutional law, your policy paper must address an issue of constitutional law bearing some substantial relationship to the general content of this course, i.e., race/ethnicity/sex/sexual orientation & the constitution. It must be on a topic about which you have not previously written a college level paper. If in doubt, consult.

Public Policy & Policy Papers: A "policy" is a regular practice or a clear course of action. (E.g., it is the policy of Cornell College to issue grades once a month.) A "public policy" is any policy adopted by a government. (E.g., it is the policy of the United States to exclude women from certain roles in the armed services.)

This Particular Policy Paper: Since your paper will address a Constitutional issue, and "it is emphatically the province and duty of the judicial department to say what the law is," (John Marshall in Marbury v. Madison), you should think of your policy paper as addressed to the Supreme Court. You will need to identify and research a constitutional issue, reach a conclusion as to how that issue should be resolved, and persuade the court that your resolution is Constitutionally correct. In substance you will be writing a legal brief. It will differ from the briefs actually submitted to the Supreme Court in two significant ways. First, real Supreme Court briefs address the facts of a specific case, which in turn raise Constitutional issues. You will likely be briefing a specific issue rather than a specific case. Second, real Supreme Court briefs are rigidly regulated with respect to format. You may choose to adopt the rigid legal format or not. One potential benefit of adopting the legal brief format (in so far as it applies to your topic) is that it forces you to be exceptionally rigorous about the organization and presentation of your argument and it may therefore result in a more effective paper. If want to use the legal brief format (or consider doing so), you can find instructions in the UCLA Moot Court Honors Program: Handbook of Appellate Advocacy (1993), on reserve in Cole Library. A typical legal brief has the following parts. Only those in bold will likely apply to your paper:

  1. Table of Contents
  2. Table of Authorities
  3. Jurisdictional Statement
  4. Statement of the Issues
  5. Statement of the Case
  6. Statement of the Facts
  7. Summary of the Argument
  8. Argument
  9. Conclusion

Your policy paper--and the seminar report, which will be produced from the same materials--will be developed through five stages. The deadlines for each stage are listed on the Course Calendar and Assignments page.

Stage I -- PUBLIC POLICY RESEARCH QUESTION & BIBLIOGRAPHY: Send an e-mail attachment addressed to Craig Allin stating your public policy research question and providing a properly documented working bibliography for that question. Use one of the three approved styles, and label your bibliography with the style you are using.

  • Stating your public policy research question requires that you identify an area susceptible to a public policy proposal and formulate a question that -- once answered by research -- becomes a policy proposal. 
  • A good research question will be specific, conceptually simple, and address the appropriate decision maker.  Answering a good research question "yes" or "no" will produce a coherent public policy proposal.
  • Bad Example: "Whether abortion laws should be changed."
    • It fails to specify the law or laws to be researched.
    • It lacks conceptual simplicity because it embraces many possible laws and many possible changes.
    • It lacks any reference to the appropriate decision maker.
    • Answering this question yes or no fails to generate a coherent public policy proposal.
    • For all these reasons, this question leads to unfocused and ineffective research.
  • Good Example: "Whether the Supreme Court should overrule Roe v. Wade."
    • Specificity is guaranteed by reference to Roe v. Wade
    • Conceptual simplicity is guaranteed by use of the term "overruled."  Overruling a decision has a clear outcome.  It returns the law to where it was before the decision was made. [Note: Roe v. Wade is not the Court's last word on abortion by a long shot, but it provides a conceptutally clear example.]
    • It addresses the appropriate decision maker.
    • Answering this question yes or no generates a coherent public policy proposal.
    • For all these reasons, this question leads to focused and effective research. Answering this question would require close investigation of the case itself and careful consideration of the substantial legal literature about the case.  The specific form of the question narrows the research to "legal considerations" because courts in the United States don't much deal in questions of theology or public opinion.
  • Your bibliography will continue to evolve throughout your research and writing, but the working bibliography you submit at this time should demonstrate that you have located and have access to information sufficient to complete your project successfully. In most cases your working bibliography should include some mix of scholarly books, articles in scholarly journals, and primary sources such as statutes and court cases. If the sources you can locate are primarily secondary and non-scholarly, i.e., journalistic, seek help in finding better sources or choose a new topic.
  • If your research question were, "Whether the Supreme Court should overrule Roe v. Wade," I would expect your bibliography to include references to the case itself, to related Supreme Court cases, and to at least several law review articles or scholarly books that deal specifically with this question.
  • You should choose one of the approved style sheets and label your working bibliography to indicate which one you have chosen.
  • This assignment is not graded, but failure to complete it in a timely fashion will negatively affect your class participation grade.

Stage II -- PROPOSAL & CONTENTIONS: Send an e-mail attachment to Craig Allin stating your public policy proposal and setting forth an outline of the contentions you intend to make for it.

  • Your public policy proposal is the paper's thesis.
  • Stating your policy proposal answers your research question. If your research question were, "Whether the Supreme Court should overrule Roe v. Wade," your policy proposal would logically be, "The Supreme Court should [or should not] overrule Roe v. Wade."  It follows that articulating your policy proposal will require you to have done most of your research. Note that your policy recommendation will be implicitly or explicity addressed to the Supreme Court.
  • The outline of contentions previews your paper's anticipated structure.
  • This is the point at which trouble most often arises, so before you submit your policy recommendation and contentions, examine them carefully using the criteria set forth in Getting from Research Question & Bibliography to Policy Proposal & Contentions.
  • Before you organize your contentions into an outline, consult A Good Argument Is a Hierarchy of Contentions.
  • This assignment is not graded, but failure to complete it in a timely fashion will negatively affect your class participation grade.

"There are three rules for writing. . . . Unfortunately, no one knows what they are."
--W. Somerset Maugham (1874 - 1965)

Stage III -- POLICY PAPER: Send an e-mail attachment to Craig Allin presenting your recommendation and supporting arguments in a formal paper with appropriate manuscript format, proper citations, etc. Remember, you are being asked to take a position and make a case for it. A good policy paper consists of a clear policy recommendation supported by strong arguments supported by unimpeachable evidence. A good policy paper will be:

  • Persuasive: You must state a conclusion and back that conclusion with reasoned argument. Your mission is to persuade the reader, and the better the argument, the higher the probability of success.
  • Well Researched: Your arguments must be firmly rooted in careful research. You must have a command of the relevant facts. You must understand your own position, the positions of those with whom you disagree, and the relationship of the facts to each.
  • Concise: A good policy papers is not always brief, but it must be concise. That means no padding and no B.S. The typical audience for a policy paper is a judge, a corporate executive, or a high government official. If your policy paper does not get to the point quickly and move the argument forward relentlessly, you are unlikely to get and hold the attention of your target audience. If you want to persuade a busy person, do not waste her time.
  • Hierarchically Organized: It will organize the arguments to be made into the strongest possible hierarchy of contentions. Refer again to A Good Argument Is a Hierarchy of Contentions.
  • Appropriately Documented: Documentation is important for both ethical and practical reasons. Ethically, documentation gives credit where credit is due. Practically, documentation enhances the credibility of your work by demonstrating its reliance on and relationship with credible sources of information. I expect you to use one of the approved styles of documentation and to follow it with care throughout your paper.
  • Well Written: I will be looking for clear organization of the ideas and arguments; effective use of paragraphs, and subheadings if you like, to orient the reader; good transitions from one part of the text to the next; a conclusion that is both substantive and relevant; and sound grammar, punctuation, spelling and usage.
  • Professionally Presented: I will also be looking for a paper that has all its component parts appropriately formatted, in proper order, and in the form of a single e-mail attachment.

Consult POLICY PAPERS: How to Succeed for more detailed instructions.

Sample Papers: Here are two recent papers written for this course that received grades of A. One adopts the "legal brief" format; the other utilizes a more conventional policy paper format.

Stage IV -- POLICY PRESENTATION: Your research and recommendation will also be shared with the class in the form of a seminar report of 15 to 20 minutes.

  • I would suggest that you talk a little about your motivation, your process, the conclusion you reached and in greater detail about the reasons for that conclusion.
  • You will not have sufficient time to read your paper, nor would it be appropriate to do so. You will want to rework your material, including text and illustrations (if any), for the most effective possible oral presentation. Effective oral presentation depends on your knowing your material well.
  • Presentation from notes is preferred to reading from a text, but reading from a text is better than rambling and confusion.
  • Visual aids often support, clarify, or add interest to oral presentations, and we have the luxury of a classroom equipped for digital projection.
  • Clarity of organization is even more important in oral presentation than in prose. A listener can't go back and rehear what you just said the way a reader can go back and reread what you wrote. It's simple-minded and formulaic, but it's often wise to preview your presentation ("tell 'em what you're gonna tell 'em") at the beginning and to review your presentation ("tell 'em what you told 'em") at the end.
  • Oral presentations don't have formal notes or bibliographies, but it is still wise to communicate sources of specialized information to the listener. E.g., "A 1997 study by University of Michigan law professor Melissa James concluded that. . . ." Source information should be included on PowerPoint slides where appropriate.
  • For excellent advice on oral presentations generally, consult Writing Scripts and Speeches, Grammar Girl Episode 337, September 20, 2012.
  • Your instructor and selected classmates will provide you with critiques of your oral presentation.

Stage V -- REWRITE: After receiving a written critique of your policy paper, you will rewrite and resubmit the paper as an e-mail attachment to Craig Allin making as many improvements in substance and presentation as you can manage.

  • The rewrite should be better than the original paper. After all, you will have had the benefit of expert editorial advice.
  • As a practical matter, a conscientious effort to address the technical problems that have been identified in your paper will preserve your grade. More substantive improvements will enhance your grade.
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