CONSTITUTIONAL LAW I
Spring 2012
Wednesday & Friday, 10 – 11:50 a.m.
Law Center Room 203
Prof. Elizabeth Samuels
Law Center Room 316
410-837-4534
esamuels@ubalt.edu
COURSE MATERIALS
Kathleen M. Sullivan & Gerald Gunther, Constitutional Law (17th ed.). Page numbers below refer to
Sullivan & Gunther. The course website will be on TWEN.
READING ASSIGNMENTS1
1. Introduction
Reading: The U.S. Constitution through the first 10 amendments (the Bill of Rights) (Appendix A,
pages A1-A10) and the handout posted for the first class assignment
2. Judicial Review & Authority
Reading: Article III; pp. 1-11, 19-24 through n. 4(c)
Cases: Marbury v. Madison, Cooper v. Aaron, Dickerson v. United States2
3. Limits on Adjudication, Standing
Reading: Article III; pp. 32-45
Cases: Lujan v. Defenders of Wildlife, Massachusetts v. E.P.A.
4. Limits on Adjudication – Advisory Opinions, Mootness & Ripeness, Political Questions
Readings: pp. 31-32, 47-59
Cases: Baker v. Carr, Nixon v. United States
5. Executive Power & Domestic Affairs/Congressional Control
Reading: pp. 249-58, 291-300 through n. 2
Cases: The Steel Seizure Case, INS v. Chadha
6. Executive Privileges and Immunities
Reading: pp. 329-43 to n. 4(a) (to 347 recommended)
Cases: United States. v. Nixon, Clinton v. Jones
7. Executive Power in Time of War
Reading: pp. 264-74
Cases: Ex Parte Milligan, Ex Parte Quirin, Hamdi v. Rumsfeld
8. Executive Power in Time of War, continued
Reading: pp. 272-97
Cases: Ex Parte Quirin, Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, Boumediene v. Bush
9. The Nation and the States
Reading: pp. 60-81
Cases: McCulloch v. Maryland; United States Term Limits, Inc. v. Thornton
10. The Nation and the States, The Commerce Power
Reading: Art. I, Sec. 8; pp. 106-26
Cases: United States v. Lopez, United States v. Morrison, Gonzales v. Raich
1 The reading assignments are subject to modification with notice.
2 The listed cases are the principle cases in the reading assignment.
11. The Nation and the States, The Commerce Power continued, the Spending Power
Reading: Art. I, Sec. 8; pp. 156-67
Cases: Commerce Clause cases continued, United States v. Butler, South Dakota v. Dole
12. The Nation and the States, External Limits on Congressional Power, the 10 th Amendment
Reading: 10th Amendment; pp. 127-44
Cases: New York v. United States, Printz v. United States
13. The Nation and the States, External Limits on Congressional Power, the 11th Amendment
Reading: 11th Amendment; pp. 144-50
Cases: Seminole Tribe of Florida v. Florida, Alden v. Maine
14. The Nation and the States, the Dormant Commerce Clause
Reading: Art. I, Sec. 8; pp. 174-75,184 at n.4-90, 216-223
up to n. 2;
Cases: Philadelphia v. New Jersey, Kassel v. Consolidated Freightways Corp.
15. Preemption; The Bill of Rights & Incorporation
Reading: 232 at Sec. 3-240 up to n.2; 13th, 14th (Sections 1 & 5) & 15th Amendments; pp. 348-55,
693-96, 363-74; handout
Cases: Pacific Gas & Elec. Co. v. State Energy Resources; Baron v. Mayor and City Council
of Baltimore, Slaughter-House Cases, Civil Rights Cases, Duncan v. Louisiana,
District of Columbia v. Heller, McDonald v. City of Chicago
16. The 14th Amendment and State Action, the 13th Amendment
Reading: 14th (Sec. 1 & 5) & 13th Amendments, pp. 699-716, 723-26
Cases: Shelley v. Kraemer, Jackson v. Metropolitan Edison Co., Jones v. Alfred H. Mayer Co.
17. Substantive Due Process & Economic Liberty
Reading: 5th & 14th (Sec. 1 & 5) Amendments, pp. 375-85, 387-97
Cases: Lochner v. New York, Nebbia v. New York, Williamson v. Lee Optical Co.
18. Modern Substantive Due Process – Reproductive Liberty
Reading: pp. 427-57
Cases: Griswold v. Connecticut, Roe v. Wade, Planned Parenthood of Southeastern Pa. v. Casey
19. Modern Substantive Due Process -- Reproductive Liberty
Reading: pp. 448-64
Cases: Roe v. Wade, Planned Parenthood of Southeastern Pa. v. Casey, Gonzales v. Carhart
20. Modern Substantive Due Process – Marriage, Family, Sexuality
Reading: pp. 464 up to n. 6 on 483
Cases: Lawrence v. Texas
21. Modern Substantive Due Process – End of Life Decisions
Procedural Due Process
Reading: 484-99
Cases: Cruzan v. Director, Missouri Dept. of Health; Washington v. Glucksberg;
Town of Castle Rock v. Gonzales
22. Equal Protection – Rational Basis Scrutiny
Reading: pp. 500-01, 641-46 through n.3, 648 at n.5-52, 624-36
Cases: United States Railroad Retirement Bd. v. Fritz; Cleburne Living Center, Inc.;
Romer v. Evans
23. Equal Protection – Strict Scrutiny & Racial Discrimination
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Reading: pp. 501-04 through n. 2, 519-21, 504-10, 515-19
Cases: Korematsu v. United States, Brown v. Board of Education (Brown I), Loving v. Virginia
24. Equal Protection – Intermediate Scrutiny & Sex Discrimination
Reading: pp. 587-610
Cases: Craig v. Boren, United States v. Virginia
25. Equal Protection – Discriminatory Effects, Affirmative Action
Reading: pp. 521-38, 548-61 through n. 1
Cases: Palmer v. Thompson, Washington v. Davis, Regents of Univ. of California v. Bakke,
Grutter v. Bollinger, Gratz v. Bollinger
26. Equal Protection – Affirmative Action, School Integration
Reading: pp. 549-61 through n. 1, 560-75
Cases: Grutter v. Bollinger, Gratz v. Bollinger, Parents Involved in Community Schools
v. Seattle School District
27. Congressional Power to Enforce the 14th Amendment
Reading: pp. 738-58
Cases: City of Boerne v. Flores, United States. v. Morrison (and Kimel, Garrett, Lane,
and Hibbs cases)
28. Exam preparation
PREPARATION AND ATTENDANCE
To learn “how to do” this area of law, and to benefit from class sessions, students need to read the assigned
case excerpts and casebook notes as fully and as carefully as possible before class. The assignments build
on the previous assignments. The different areas of constitutional law covered by the assignments are
interrelated. Falling behind in the reading makes it much more difficult to understand the material.
Class attendance is a primary obligation of each student for the sake of the group as well as the student. A
student who exceeds the maximum allowable absences under the ABA and the Law School attendance
policies may be compelled to withdraw from the course. A student who is present but unprepared may be
treated as absent. If an unusual situation prevents you from being prepared, submit a note before class
begins. An attendance sheet will be distributed at each class and it is your responsibility to ensure
that you have signed the sheet. It is an honor code violation for a student to misrepresent the
student’s own or another student’s attendance. (If for some reason you can attend only half the class, it
is your responsibility to indicate that on the attendance sheet.)
Students should not disrupt the class by arriving late or leaving the classroom during class. If special
circumstances require your late arrival or early departure, notify the professor before class. Policies
regarding the use of laptop computers will be discussed in class.
PARTICIPATION and EXAMINATION
Students have a responsibility to one another as well as to themselves to complete reading assignments and
participate in class discussions in a way that demonstrates as well as possible that they have read and
reflected on the assignments. In class we work together on learning not only a body of constitutional law -albeit a constantly evolving body of constitutional law -- but equally importantly on learning how “to do
constitutional law,” that is, to learn how lawyers practice and how judges decide the law. Part of this
process involves discussing unsettled and critical questions that do not have “right answers” – and learning
to live with and be comfortable with the inherent uncertainty. Students may earn one step up in the final
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grade for good class participation (e.g. from B to B+). The quality of class participation includes: how well
students are prepared, how well they consider and discuss “on their feet” issues that they often will not have
thought about before class, how clearly and succinctly they express themselves, how well they listen to and
take into account other students’ comments, and how actively they voluntarily participate.
As part of participation, beginning in the fourth week of the semester, students are required to participate in
the course website Discussion Board at least once every three weeks, including starting a discussion thread
at least once. More specific instructions will be available on the course website.
There will be a three-hour closed book exam. Students are permitted to use computers.
OFFICE HOURS AND CONTACT INFORMATION
Office: Law Center Room 316
Administrative Assistant: Ms. Laurie Schnitzer, Law Center Room 300, 410-837-4689.
Office hours: Wednesdays and Fridays 1:30 – 2:30 p.m. (changes due to administrative responsibilities will
be posted on the office door), but it usually seems more convenient for students to just drop by whenever
I’m in the office, or to email or phone, or to make an appointment for a convenient time. So feel free to
drop by, email or phone, or make an appointment by email or phone. Email is esamuels@ubalt.edu.
Telephone contact information is 410-837-4534, 301-589-0345, 240-475-6424 (if you get voice mail, leave
a message explaining how best to reach you by phone).
Learning how to sail a boat and how to do law:
. . . I am suggesting that knowing the rules of the law is like knowing the names for the parts of the
boat: it is useful information that teaches little about the enterprise itself. . . . To learn law, one must do law.
It is the function of our classes to help you learn how to do law.
A more complete analogy may be to learning language. One must of course learn the rules of
grammar and the meaning of terms, but to know those things is not to know how to speak the language.
That knowledge comes only with use. The real difficulties and pleasures lie, not in knowing the rules of
French or the law, but in knowing how to speak the language, how to make sense of it, how to use it to serve
your purposes in life.
James Boyd White, Heracles Bow 52-53
(1985)
Learning from our differences:
You have learned first of all that there are always at least two sides to a case or argument. However
clear your own initial response may be when a question is put to you--say about prayer at high school
graduations, or whether price advertising by corporations [is] protected by the First Amendment, or whether
a state [is] free to prohibit homosexual relations between consenting adults--you know that there are
arguments the other way; and you also know that it is not your task merely to answer these arguments, but to
consider them and learn from them. Perhaps the heart of legal education is learning that on a great many
issues, including the most important and vital, reasonable and decent people differ profoundly; and that law
itself can be a way of respecting and living with such differences.
James Boyd White, in a May 2004 speech to graduating law students
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