Constitutional Law I
Syllabus
Paul Gowder
LAW:8010, Spring 2016, Sections 1, 3, 4
Monday, Tuesday, Wednesday @ 11:30-12:30, BLB room 225
Professor: Paul Gowder
Office: 407
Phone: 319-384-3202
Email: paul-gowder@uiowa.edu
Office Hours: Mon., Wed. 1-3pm
Assistant: Jackie Hand
Office: 433
Phone: 319-335-9213
Email: jackie-hand@uiowa.edu
Casebook and Materials
Most readings will be from the casebook, Kathleen Sullivan & Noah Feldman, Constitutional
Law, 18th edition, plus the 2015 supplement to same. I’m sorry about the price—this market
is a horrible oligopoly. I’m working to develop free materials for this course, but they will take
a few years to perfect.
Supplemental readings and additional materials will be available via the course website. Many
students find a hornbook useful for black-letter rules; if you feel you need one, Chemerinsky’s
is the best (getting a used prior edition to save money won’t hurt).
Note on Website
We will be using an experimental replacement for ICON that the UI is testing. The system
is called “Canvas.” Because it’s experimental, there may be glitches. Most material will be
mirrored at paul-gowder.com/conlawI in case of Canvas problems. Neither website is quite
set up yet, but at least one will be functioning by the end of the first week.
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Course Philosophy and Design
This class will deviate a little bit from the law school norm. There are three guiding principles:
1. Formative assessments are important. The “one big test at the end of the
semester” method is a terrible way of helping you learn, because you don’t get any
feedback about what you do and do not understand. Accordingly, this syllabus contains
small and low-stakes mid-semester exercises, with feedback, to allow you to calibrate
your judgment of how much you know to my judgment.
2. You learn by interacting and doing. Passive learning is pretty ineffective, as is the
kind of learning that mostly involves just frantically writing or typing to transcribe every
drop of wisdom that falls out of the professor’s mouth. Accordingly, while some of our
class time will be spent either in traditional Socratic dialogue or in me lecturing at you, as
much as possible will be spent broken up into small groups where you will discuss cases,
hypos, and other questions which I will from time-to-time pose to you.
3. Constitutional law is different. While there is a lot of doctrine to learn, you can’t understand the doctrine without understanding (a) the high-level methods of constitutional
argument, (b) some fairly deep philosophical and policy questions, and (c) the interaction between constitutional adjudication and brute politics. Accordingly, this course will
be lots less purely doctrinal than your other first year courses, and a lot of class time in
particular will be spent on a, b, and c rather than doctrine.1
Evaluation
1. Traditional law school final exam: 80%
2. Completion of fundamental issues reflection essay: 10%
3. Completion of outline assignments: 10%
I will explain items 2 and 3 in a moment. All grading is anonymous and curved per College of
Law policy. While there is no formal participation grade, I reserve the right to make moderate
adjustments to final grades to reflect either extraordinarily strong participation or extraordinarily egregious lack of preparation.
Fundamental issues reflection essay
Toward the end of this document, you will see a section entitled “key questions,” with a subsection entitled “fundamental issues.” That section has five big top-level questions about the
Constitution in it (in italic typeface). You are to choose one of them and hazard an answer to
it, in the following form:
1
That being said, you still have to learn the doctrine, and you will still be tested on it. This tends to mean that
learning constitutional law is more work than learning other areas of law, because you have to master all this other
stuff in addition to the doctrine, and in the same amount of class time. I will try to provide overviews of black-letter
doctrine to read out of class, to the extent practicable, but you should still expect this to be a lot of work.
2
• Due by noon the last day of our class (April 27).
• Minimum 2000 words, exclusive of references, no maximum. Informal style is fine.
• Defend some view (any view) on one of those fundamental issues, based on what you
learned in class.
• Grading will be credit/no-credit. Reflection essays that reflect a serious engagement with
the big ideas of constitutional law will receive full credit.2 This will not be a demanding
standard. Those that reflect no engagement at all, or are not turned in on time will
receive no credit. No late submissions will be credited.
• The goal is to make you think about the big picture. Do so and you’ll do fine.
Outline assignments
After the first week, every student will be required to complete 2 collective outlines throughout the
semester. Here’s how that will work.
• You will be randomly assigned two class sessions.
• For each class session that you’re assigned, write a document (outline) consisting of:
(a) A brief for each case that we covered that day. Briefs should summarize the facts
of the case, its procedural history, the holding, and the main arguments of each
opinion (majority, concurrence, and dissent).
(b) A summary of the class discussion, including your recounting of what was discussed
both in general session and in your small group discussion (if any) as well as a summary of what we learned from the class session and any open questions that remain
unresolved from it for you.
• Send the outline to Jackie via e-mail (or submit it over Canvas), by noon Friday of the
week in which your assigned session falls.
• There are no minimum or maximum length standards. Write what’s necessary to do the
job. (If you’re unsure, follow the models I will provide you.) Informal style is fine.
• Your outlines will be posted online (anonymously) for your classmates.
• They will be graded credit/no-credit. Posts that reflect a serious effort to help synthesize
the material in your own words and help your fellow students learn, even if there are
mistakes, will receive full credit. Those that reflect no effort at all, or are not turned in
on time, will receive no credit.
• I will write example outlines for the first week, so you have good examples to go from.
• The goal is to make the course a collaborative environment where you help one another
learn You should write the outlines with the expectation that they will assist your classmates in studying.
2
“Serious engagement” means that you have thought about the question and come to a reasoned view of your
own, as well as an argument in defense of that view which does not merely repeat what someone else thinks. I will
try to provide models from a different subject.
3
• A recommendation: writing your own outlines for everything is an excellent way to learn
the material… and if you do that, then when your days come up you can just share what
you already have.
Office Hours, Contacts, etc.
I will maintain office hours Monday and Wednesday from 1-3pm (subject to change). I’m also
happy to make appointments at other times, and you’re always free to drop by when my door
is open. I’m very good at replying to e-mail and very bad at checking telephone messages.
Other matters
• For accommodations for disabilities, language issues, etc., talk to me or to the dean of
students (for exam stuff, talk to the dean of students). I’m committed to equal access to
learning, and so is the rest of the College of Law.
• Please let me know if you’re going to miss class. Attendance is really important. Also,
there will be no videorecording: if you must miss a class for some good reason, you will
get to discuss it with one of your classmates rather than just passively watching a video.
• Please try to minimize classroom distractions, especially the electronic kind. We’re all
guilty of texting/facebooking/whatevering when we ought not to be, but if you find yourself doing it consistently, this is a problem, because it’s both a) disrespectful of and distracting to your fellow students (as well as to your professor) and b) a habit that will do you
harm later in life. The famous Stanford Marshmallow Experiment is a great example of
the lifetime importance of developing skills in impulse control and delayed gratification;
work on them here.
• I can’t imagine anyone will engage in any academic dishonesty here (plagiarism, exam
cheating, etc.). But if anyone should do so, I will come down on that person with the force
of a thousand Iowa Spring tornadoes. If you have any doubt about what’s appropriate,
please ask.
• I run a collaborative, not a hierarchical, classroom. All thoughtful feedback about anything in the course is welcome, including pacing, difficulty, reading and assignments,
classroom interaction, etc. We’re all in this together.
• I also know that 1L year can be scary, and law school in general can be scary and alienating. I’m happy to talk about it on a one-to-one basis. Also, I recommend two things
that only contradict one another a little:
1. Get a study group, and have people to talk to, but also
2. Get away from the law school as much as possible, especially around exam time, so
the stress freak-outs of others don’t infect you.
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One good way to get away from the law school is to help others. Volunteering is great, there
are lots of people in need in our community. Working for something you believe in is great
(And we’re in Iowa! There’s an election coming up!). The Iowa City Animal Shelter always
has lots of adorable creatures that need petting. This is my baby, he came from the shelter:
Figure 1: Leonidas.
Key Questions
This is an outline of the key questions of Constitutional Law I. They pervade the material:
in every week, these questions will come up, and a lot of our classroom time will be spend
exploring how the cases we read help us answer them.
I. Fundamental Issues
A. What kind of law is the constitution?
1. Ordinary Law?
2. An expression of aspirational/moral ideals?
3. Both?
B. Does the meaning of the constitution change with social values and understandings? (“originalism”
vs “living constitutionalism.”)
C. How much of the constitution is “unwritten?” Are there natural law constraints that work
to constrain government through the constitution?
D. Is the constitution democratically legitimate, a restraint on democracy or a manifestation of the will of
the people (or both)?
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E. Who gets to decide what the constitution means?
1. Just judges (“judicial supremacy”)?
2. All three branches (“departmentalism”)?
3. The people, through and/or apart from the electoral process (“popular constitutionalism”)? Which takes us into…
II. Separation of Powers
A. What powers are allocated to the courts, legislature, executive?
B. When courts conduct constitutional review, to what extent should they defer to the
decisions of officials of other branches with respect to their domains of constitutional
authority? (Example: review of executive decisions in national security cases.)
C. To what extent can branches delegate powers to one another? In particular, to what
extent can Congress allow the executive branch to carry out legislative and adjudicative functions? (And is “the court should defer to the president in X” equivalent to
“the judiciary should delegate adjudicative functions to the executive in X?”)
D. Does Congress have the power to make general legislation when it feels necessary, or
just on specific topics? (How broad are the commerce clause, necessary and proper
clause, etc. powers?)
E. When do federal courts have the power to resolve disputes brought to them by private parties:
1. Against one another?
2. Against the federal government?
3. Against the states? Which takes us into…
III. Federalism
A. Can Congress directly regulate the states?
B. To what extent can Congress override state legislation?
C. What kinds of things can the States make law about, but not Congress? (And vice
versa.)
Schedule
This is a pretty aggressive reading schedule, organized by weeks. I expect class sessions to fall a
little behind, and that’s ok; lots of catch-up and flexible time is built in at the end. Please keep
up with this reading schedule regardless of how the in-class pace shakes out until I announce
otherwise.
CB = casebook; S = supplement, TBD = to be determined.
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Week
Dates
Topic
Reading
1
Jan 19- 20
Introductory topics.
2
3
4
Jan 25-27
Feb 1-3
Feb 8-10
5
Feb 15-17
6
Feb 22-24
The power of judicial review.
Limits on judicial power.
Congress and limited federal
power.
The commerce clause,
economic regulation & general
powers.
Modern developments in same.
The text of the
Constitution (entire);
Federalist papers 44, 45,
51, 78, 80.
CB 1-36.
CB 36-71; S 1-15.
CB 73-109, S 17-18.
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Feb 29-Mar 3
8
Mar 7-9
Taxing, spending,
CB 187-219.
commandeering.
The dormant commerce clause. CB 219-273.
X
9
10
Mar 14-16
Mar 21-23
Mar 28-30
NONE
More restrictions on states.
Presidential Power.
11
Apr 4-6
12
Apr 11-13
13
Apr 18-20
14
Apr 25-27
Foreign relations and national
security.
Special topic: the
administrative state.
Special topic: federal civil
rights powers.
Catchup/Review.
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CB 109-136.
CB 136-187.
Spring break!
CB 273-296.
CB 297-317, 367-399,
405-423; S 25-27.
CB 317-67, 399-405; S
19-25, 27-30.
TBD
CB 811-814, 835-885.
TBD