Constitutional Law I (Sections D and E)
Professor LaTisha Gotell Faulks
Atlanta's John Marshall Law School
Fall 2012
COURSE AND CONTACT INFORMATION
Room:
Building 1430 Room 610 (day);
Building 1422 Room 304 (evening)
Office Hours:1 TBD
Room: 620, building 1422
Office Phone: (404) 872-3593 Ext. 292
E-mail: lfaulks@johnmarshall.edu
SYLLABUS
Welcome to Constitutional Law II/Civil Rights and Civil Liberties (Con Law II) with
Professor Faulks. As you know, Con Law is not only the foundational basis for
American Jurisprudence; it is a vital course as you move through your study of the
law and a major portion of the Bar Examination. My goal -- indeed my duty as your
professor -- is to prepare you, not only for the Bar Examination both substantively
and psychologically, but for a life of Constitutional analysis in you professional,
academic, and personal life. Indeed, I am dedicated to making you a citizen soldier in
the legal discourse of our time. No matter how your personal, spiritual, or
professional beliefs inform your conclusions, you MUST have a solid understanding
of the underlying analytical structure of Constitutional Law if you are to meet my call
to duty as an emerging legal mind. To that end, I look forward to thinking through
some of the most challenging and timely legal questions of our constitutional culture
with you. Below I summarize the course assignments, meetings, content, method,
and evaluation. I also relate how you may communicate with me outside of class.
1. Student learning objectives Upon completion of this course, I expect that students
will know and be able to:
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
1
articulate, define, and identify the use of the canons of constitutional
construction.
articulate, define, identify, and implement the use of the theories of
constitutional interpretation.
identify the theory of constitutional interpretation and the methodology
used by each justice to reach their conclusion in a particular case.
Because of the unique time concerns of evening students, I recognize that the listed office hours may not
be as helpful as I intend. If these hours are not helpful or convenient, PLEASE feel free to make an
appointment that suits your needs.
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extrapolate, synthesize, and accurately state rules of law relating to the
scope, relationship, and limits of judicial, legislative, and executive
power under the U.S. Constitution.
extrapolate, synthesize, and accurately state rules of law relating to the
scope and limitation of state and federal powers under the principle of
federalism, including the source and scope of Congressional authority,
powers reserved to the states under the Tenth Amendment, and federal
preemption pursuant to the Supremacy Clause.
identify the relevant constitutional issue presented, the relevant
Supreme Court precedent, and apply that precedent to the relevant
facts providing legal arguments supporting the position advocated by
each party when given a fact pattern.
identify when the language of a statute, regulation, or government
policy is a fact for purposes of constitutional analysis and then analyze
and assess the constitutionality of said provision.
2. Assignments: As in Con Law I, the required texts are Erwin Chemerinsky,
Constitutional Law (3d ed. 2009), and its most recent Supplement.2 Chemerinsky is a
very student-friendly Con Law casebook; the exposition is clear, the cases are welledited, and there are no notes full of semi-rhetorical questions. Please note that the
text publisher may offer both electronic and loose-leaf versions of the text, thus
cutting down on the bulk of reading you must carry.
3. Meetings: We are required to meet for approximately 3 hours a week for about 14-15
weeks. We will execute our responsibilities in this regard by meeting: Wednesday
and Friday from 9am to 10:30am for the day section and Monday from 6:15pm to
9:30pm for the evening section. I foresee missing classes sometime in MARCH;
however, I will either secure a substitute or make up the lost time as soon as possible
to ensure that the class remains on schedule.
As a professional courtesy, I request that if you know you will not be able to attend
class, advise me in writing (via email, preferably) of your absence as soon as you
become aware of the issue. If you are uncertain whether you should attempt to attend
class, I provide the following credo I received from my favorite law professor:
If you are not contagious and you can walk, talk, and breathe without infecting or
being a danger to yourself or others, pull it together and drag it into class. If you
will be no more than five minutes late and can enter the class and reach any seat
without a disruption (assuming the classroom door is open), 3 pull it together and
drag it to class.
2
Please note that I may not use material in the supplement for class discussion. To the extent that you
prefer not to purchase this text, I will provide the citation for materials if needed for classroom discussion;
however, please keep in mind that the Supplement heavily edits the text of cases for ease of study.
3
Please read my classroom rules closely and carefully. I have a very low tolerance for tardiness based on
my practice life as a death penalty appellate attorney. See http://www.cbsnews.com/8301-504083_1625193230-504083.html. Several students have discovered my policy not from reading the readily available
rules, but from being barred from class.
I will not purposely do anything as draconian as locking out late-comers, but you
should anticipate being “on” if you arrive after we have begun class. Finally, please
note that both the American Bar Association and the institution mandate your
attendance in class. I do not have the authority (or inclination) to excuse absences or
otherwise alter the institutional attendance policy. PLEASE NOTE that the
Academic Dean has the discretion to provide a remedy or accommodation for
excessive absences; however, it is imperative that if you foresee a concern, you
advise the Academic Dean immediately and be able to account for all of your
absences.
4. Content: This course Civil Rights and Civil Liberties, including Due Process,
Fundamental Rights, Equal Protection, and an introduction to First Amendment.4 I
have followed Professor Chemerinsky’s format closely and divided the material into
several units:
Unit I – The structure of the Constitution’s Protection of Civil Rights and Civil
Liberties
Unit II - First Amendment: Religion.
Unit III – First Amendment: Freedom of Expression.
Unit IV – Equal Protection.
Unit V – Due Process.5
5. Supplemental Readings: There are several supplemental texts that may be of great
use to you as we study this material. First, I strongly recommend Erwin
Chemerinsky’s Constitutional Law: Principles and Policies. The text strongly
complements the required text -- at some times to the point of duplication. Second,
you may want to consider Contexts of the Constitution by Neil H. Cogan. If you are
interested in the source documents informing the Constitution, this text has a wealth
of historical documents and commentary. Please note, however, that many of the
documents in this text are publically available for free, though not as organized by
this author. There are literally hundreds of other authors who consider and/or discuss
constitutional law and theory. At this point in your education, I recommend that you
avoid texts that profess how the constitutional debate SHOULD occur rather than
how that debate ACTUALLY occurs.
For your general legal education and professional development, I recommend Five
Types of Legal Arguments by Wilson Ray Huhn. Indeed, if you plan to take any
future classes with me, Prof. Huhn’s text will be a perennial recommendation because
of its straightforward method of organizing argument styles.
4
We will not study several areas of constitutional law covered in other courses, including: the rights of
criminal defendants under the Fourth, Fifth, and Sixth Amendments (Criminal Procedure); the Fifth
Amendment’s Takings Clause (Property); the death penalty (Criminal Law, Death Penalty Seminar); and
the constitutional doctrines concerning federal-court procedure (Federal Courts and/or Conflicts of Law).
5
Beyond the foregoing, I don’t have any specific recommendations. There are a lot of
great study aids available, depending on your learning style. I know there is a strong
tendency to try to shortcut the learning process with commercial outlines, but I
caution you now and will caution you often to put in the work. Commercial outlines
are a tool and a means to an end, but they are a poor substitute for reading the
material, studying it, asking yourself and your colleagues’ questions, and meeting the
challenges I place before you in class. Please note that you will not be allowed to
bring any materials into the final exam.
As you prepare for potential questions I may ask on the exam, I recommend that you
listen to radio reports highlighting the Supreme Court’s actions or read the
newspapers concerning current questions before the Court. In my experience, factual
reporting about the actions of the Court should not have an ideological perspective.
Though most mainstream commentators have a legal background (though not a
practitioner’s background) you should be more concerned with analytical
methodology and clarity of precedent for purposes of this class. I am fond of
coverage provided by Nina Totenberg on NPR. You may also find the website
SCOTUSBLOG very helpful.
Also, please note that I often re-post stories of interest that come to my attention. These
may include stories on constitutional questions, death penalty jurisprudence, sentencing
issues in federal court, judicial nominations and appointments, and law and popular
culture (I am a Law & Order junkie). I am on both Twitter and Facebook, but prefer to
communicate with students through Twitter until they graduate. My handle is
@ProfFaulksEsq.
6. Method: The class will proceed almost entirely by discussion. I expect you to
participate regularly and will call on students to discuss material on a somewhat
random basis. Your colleagues and I are counting on you to help make our course a
success.
7. Evaluation: Your grade will be based on several factors:
(1) (50%): topic quizzes (3-4) to be assigned periodically during the
semester. We will discuss the specifics of these quizzes once classes
begin. The first and second quiz will be worth 5% of your total grade, the
third 15% (occurring during midterm week), and the fourth 25%.
(2) (30%): a closed-book final exam scheduled on a date to be determined
by the law school. The final exam, which will be cumulative of the
semester, will have several essay questions, and may have multiple
choice, and/or short answer questions. The final should not take you more
than 3 hours to complete (really).
(2) (15%): preparation and participation in the class discussion. As I have
stated, the entire class will proceed almost entirely by discussion and relies
on each person’s contribution to the discussion. If you are uncomfortable
speaking in public without advanced notice, we can reach an arrangement
outside of class, but it is CRUCIAL that each of you anticipate being “on”
for a class discussion at some point -- if not several -- during the term. If
you are excessively tardy, absent without notice, or unprepared, those
actions will adversely impact your participation grade.
(3) (5%): Extraordinary preparation and participation deserves
extraordinary consideration. The remaining 5% of your evaluation is to be
used at my discretion.
8. Communication: I will be available for consultation as often as demand warrants. If
you want to meet outside of office hours for an extended period, call or e-mail me and
we will arrange a time that works for both parties. Also, please feel free to drop by
unannounced if you want to talk for a shorter time. I encourage you to interact with
me and with one another throughout the semester, during, and outside of class. My
consistent experience has been that talking through tough legal issues with others
makes for better, happier students, professors, and lawyers.
One last etiquette note; I am happy to assist students in clarifying their
understanding of material, but I am not a treatise or Wikipedia resource, nor am I on
retainer as your personal counsel. If you have a question, present it in class not an
email after hours. If the question occurs to you after hours or as you read or review
notes, write it down and leave it on the podium for me to address for the entire class.
If I do not know the answer off of the top of my head, I will keep the note and address
it as soon as I can.
ASSIGNMENTS
In the syllabus that follows, all pages refer to the casebook, ERWIN CHEMERINSKY,
CONSTITUTIONAL LAW (3d ed. 2009). Also make sure that you consult the most recent
supplement to determine whether there is recent material concerning the assigned
material. While I may not specifically assign that material, it is fair game for class
discussion and examination. Moreover, the supplement material may provide modern
context to older material or raise new questions concerning how the Supreme Court is
dealing with material. In my experience, some materials take substantially longer to
cover depending on class comfort with the materials. I will go through this syllabus as
quickly or as slowly as necessary to give each of you the best opportunity to learn the
materials.
Week #
1.
2.
3.
4.
5.
6.
7.
8.
Topic
Application of Bill of Rights to
States;
State Action
Intro to Religion Clauses; Free
Exercise Clause
Est. Clause methodology
Est. Clause and religion in schools;
Est. Clause and aid to parochial
schools
Why is speech protected;
Techniques for judicial analysis
(pt 1): content neutrality
Techniques (pts 2 and 3):
overbreadth/vagueness;
prior restraints (pt 1)
Techniques (pt 4): prior restraints
(pt 2);
What is an infringement?
Incitement to illegal conduct;
Fighting words;
Sexually oriented speech;
Commercial speech
Pages for review
Other notes
76 pages
523-599
1665-1702
1703-1731
37 pages
28 pages;
BE PREPARED
FOR A QUIZ
(5%)
45 pages
1758-1803
31 pages
1205-1236
1236-1275
39 pages;
BE PREPARED
FOR A QUIZ
(5%)
45 pages
1276-1321
1321-1461
140 pages, pace
yourself and
outline before
class
37 pages;
BE PREPARED
FOR A QUIZ
(15%)
72 pages, outline
before class
200 pages, pace
yourself and
outline before
class
15 pages;
BE PREPARED
FOR A QUIZ
(25%)
9.
Non-verbal communication
1494-1531
10.
What places are available for
speech
1531-1603
11.
Equal Protection (broad
overview)
717-917
12.
Other types of discrimination
927-942
13.
14.
15.
Procedural Due Process
Protection of fundamental rights
Protection of fundamental rights
1158-1204
46 pages
943-1040
1056-1069
97 pages
13 pages