Chapter 5 — Exercises

Reading the chapter

These exercises ask you to do work the chapter only describes. Civil liberties cases are not abstractions; they are documents in a federal records system, and you can read them yourself. Most of the assignments below are doable with free public databases.

Exercise 1 — Read the opinion (45 minutes)

Pick one of the following four cases and read the assigned excerpt. Each is freely available on Justia, Oyez, or the Supreme Court's own opinions page.

Write a 400-500 word reading note answering the assigned questions. Do not summarize the whole opinion; address only the doctrinal move.

The point of this exercise is to read the legal text, not the journalism about the legal text. Most political commentary on these cases gets the doctrinal move wrong, in both directions.

Exercise 2 — Steel-man (60 minutes, two opposing pairs)

For each of the three contested questions below, write two short essays (300-400 words each) — one defending the position you find more sympathetic, one defending the position you find less sympathetic. The essays should:

1. Be written so that a thoughtful adherent of each position would say "yes, that's what I actually believe."
2. Include at least one specific empirical or doctrinal claim, not merely values rhetoric.
3. Avoid the easiest-to-rebut version of the position. Steel-man, do not straw-man.

Question A — Campus speech codes

Many American universities have policies restricting harassing or hostile speech in classrooms, residence halls, and campus events. Civil-liberties critics argue these policies violate the First Amendment (at public universities) or violate institutional values of academic freedom (at private universities); their proponents argue the policies are narrow accommodations that do not reach core protected speech and that promote inclusive learning environments.

Write the strongest version of each side, recognizing that this is a question on which the standard partisan map can flip — many on the political left have argued for restrictions on campus harassment; many on the political right have argued for restrictions on speech they regard as anti-American or sexually explicit. Civil-liberties charity goes opposite ways for opposite groups, and the test of doctrinal seriousness is whether your principle holds across that flip.

Question B — Gun rights

A state legislature is considering a law that would (a) require completion of an 8-hour firearm-safety course before issuance of a concealed-carry permit, (b) prohibit carrying in 24 designated "sensitive places" including schools, hospitals, polling places, and bars, and (c) require licensed firearm dealers to retain transaction records for 20 years.

Write the strongest version of the constitutional argument for upholding the law under Bruen's "history and tradition" test, drawing on early-American licensing and sensitive-places regulations. Then write the strongest version of the constitutional argument against upholding the law, drawing on the limits Bruen placed on permitted regulatory burdens.

Question C — Abortion (post-Dobbs)

A state has enacted a 12-week abortion limit with exceptions for the life of the pregnant person, rape, and incest. A pregnant person living in that state argues the limit violates her rights under the state constitution (which contains a privacy clause never previously interpreted in the abortion context).

Write the strongest version of the argument that the state constitution protects abortion access despite Dobbs having removed federal constitutional protection. Then write the strongest version of the argument that the state constitution does not, drawing on the same originalist methods Dobbs applied federally.

For each side, name a specific scholar or judge whose published work supports the position. The point of the exercise is to inhabit each argument well enough to articulate it without contempt.

Exercise 3 — Find the case (45 minutes)

For each of the five contemporary disputes below, identify (a) the controlling precedent, (b) the doctrinal test that case will be analyzed under, and (c) the specific empirical or factual question that will likely determine the outcome.

Use the case names and tests from the chapter; if you need additional research, the Cornell Legal Information Institute and Oyez are reliable starting points. Write your answers as a one-paragraph analysis for each dispute, not as one-line answers.

Exercise 4 — Democracy Audit, Chapter 5 task (90 minutes)

Identify any active civil-liberties litigation in the federal district court covering your congressional district. (If your district straddles multiple districts, pick one.)

Useful starting points:

• PACER (pacer.uscourts.gov) — the official docket system, registration required, fee per search after the first $30 per quarter is free.
• CourtListener (courtlistener.com) — free aggregator, decent coverage of major cases.
• State ACLU affiliate docket page — most state ACLUs maintain a current-cases page.
• Institute for Justice (ij.org) — case docket.
• Foundation for Individual Rights and Expression (FIRE) — campus speech and association cases.
• Becket Fund (becketlaw.org) — religious-liberty cases.
• Electronic Frontier Foundation (EFF) — Fourth Amendment and digital-privacy cases.

For one active case, write a one-page analysis answering:

1. What is the case about? (The plaintiff, the defendant, the alleged constitutional violation.)
2. What constitutional provision is invoked? (First, Fourth, Eighth, etc., and which clause within it.)
3. What is the controlling doctrinal test? (E.g., Brandenburg's imminent-lawless-action test, Bruen's history-and-tradition test, Carpenter's expectation-of-privacy test.)
4. What is the strongest argument for the plaintiff? (Steel-man.)
5. What is the strongest argument for the defendant (often the government)? (Steel-man.)
6. What precedent will most likely control? (Cite the case.)

Save your notes. You will return to this case in Chapter 14, when the chapter on the federal courts will ask you to follow it through the procedural steps from filing to disposition.

If your district has no active civil-liberties litigation in federal court, that is itself an interesting datum. Note it. Compare to the next-nearest district.

Exercise 5 — The unpopular speech check (30 minutes)

The chapter argues that civil liberties protect unpopular speech regardless of whose ox is gored. Test the argument on yourself.

Write down three specific examples of speech you find personally repugnant (no need to share them with anyone). For each:

1. State the speech as charitably as you can articulate it.
2. State why you find it repugnant.
3. State whether and on what grounds you believe the government should be permitted to punish it.
4. If your answer to #3 was "yes," apply the same standard to a category of speech that you currently support but that someone else might find equally repugnant. Does your standard hold up?

This is a private exercise. The point is not to share. The point is to notice when your civil-liberties commitments are real (consistent across the political map) and when they are conditional (varying with the speaker). Both kinds of commitment are honest; only the first one is what the doctrine actually protects.

Exercise 6 — The empirical/normative split (45 minutes)

The chapter insists that on every contested civil-liberties question you must distinguish empirical claims (what the data shows) from normative claims (what should be done). Practice the discipline.

For each of the following statements, do three things:

1. Categorize it as primarily empirical (a factual claim that could in principle be settled by data) or primarily normative (a value claim that data cannot fully settle), or mixed.
2. If empirical, identify the kind of evidence that would support or undermine the claim.
3. If normative or mixed, identify what values or principles the claim depends on, and what someone who disagreed would have to argue.

a. "The United States has approximately five times the firearm-homicide rate of comparable developed democracies."

b. "The First Amendment should be interpreted to protect commercial advertising no less than political speech."

c. "Brandenburg's test produces fewer false positives — fewer convictions of speakers whose speech did not actually produce violence — than the 'clear and present danger' test it replaced."

d. "Dobbs was correctly decided as a matter of constitutional interpretation."

e. "After Bremerton, the practical likelihood that a public-school employee will engage in religious expression in front of students has increased."

f. "The exclusionary rule deters Fourth Amendment violations more effectively than civil suits and internal discipline would."

g. "An educated democratic citizenry must be willing to extend civil-liberties protection to speakers whose views they find repugnant."

This exercise is best done with another student or in discussion section. The point is to develop the habit of separating the two kinds of claim before evaluating either.

Exercise 7 — Drafting the doctrinal test (60 minutes)

Pick one of the following doctrinal areas where the law has changed in the past decade. Write the controlling test in your own words, in two forms:

1. The technical version — as a federal judge would state it, citing case names and using legal terminology.
2. The plain-English version — as you would explain it to a thoughtful family member who has no legal background.

Both versions must be accurate. The plain-English version should not lose precision; it should gain accessibility.

Submit both versions. The exercise is graded on accuracy in both, not on length.

Selected exercises have answer keys in appendices/answers.md. Exercise 4's Democracy Audit deliverable is graded on the analysis, not on a "right answer."