CONSTITUTIONAL LAW
(Dec. 17, 2015 draft)
SYLLABUS
SPRING 2016
Dates: Tues. & Fri., 10:00-11:50 am
Room TBA
Professor: Susan Carle
Office: Y241
Office Hours: TBA depending on class availability
Phone: 202 274 4188 (w); 301 325 2650 (cell);
301 652 4628 (home)
Email: scarle@wcl.american.edu
Assistant: Ms. Karrma Freeman-Terrell
Room:
Phone: 202 274 4068
Email: freemant@wcl.american.edu
Introduction
Welcome to the study of U.S. constitutional law. Our constitutional law system establishes the
structure of the U.S. government and the allocation of power among the branches of
government and between the national and state levels of government. It also defines certain
fundamental legal rights and protections, usually as against government action. Your future
career depends on your understanding these foundational principles; in almost all legal fields,
constitutional law principles guide analysis and lurk in the background even if not the forefront
of many legal questions.
Most importantly, constitutional law involves the separation of powers into the legislative,
executive, and judicial branches and the allocation of powers to these branches. We will study
these important principles in Unit One of this course. Equally importantly, the federal
Constitution defines our system of federalism, which allocates powers among the national
government, state governments, and the people. We will study these topics in Unit Two. Last
but by no means least, the U.S. Constitution defines some of the core rights of individuals (and
sometimes others, such as corporations) in our legal system. An introduction to these topics
will be the focus of Unit Three. We will focus there on the structure and methodology of rights
analysis; the limited space we have in a one semester course unfortunately will require us to
leave in-depth exploration of these many fascinating topics to our many rich upper-level
courses (which can be reviewed through http://pathways.wcl.american.edu/).
Textbooks
• Your casebook for this course is a specially designed product for this course that melds
several books you would otherwise have to buy separately. It costs approximately $180, which
is far less than buying these several books separately or the entire casebook by itself. You can
either order the book from the American University bookstore or directly from the publisher.
Here is the ordering info.
Susan Carle, Constitutional Law 4th Edition -- Custom Version (Wolters Kluwer 2016)
CP: American Carle Con Law 4e
ISBN: , ISBN: 9781454875772
NB: You cannot buy this online from third party sellers or from a regular bookstore, and last
semester’s edition will not work for this class because we are studying many different and/or
new cases. If you have any questions, feel free to email me or my assistant (contact info. is on
page 1).
Our initial readings are also loaded as a PDF in myWCL so you can start on the reading before
you get the physical book. It is important that you purchase this particular custom-made book
as it is what we will be referring to throughout the semester.
•An excellent optional supplemental treatise, by the same author is
Erwin Chemerinsky, Constitutional Law: Principles and Policies, 5th Edition (Aspen Student
Treatise), 5th Edition, 2013. ISBN 978-1-4548-4947-6
Copies of this treatise are available in the reserve room of the library. Using the supplemental
treatise in the library when needed could be a good way of saving money, as could sharing the
cost by purchasing a collective copy with a group of other students.
Grading
From a law professor’s perspective, law school course grading is always a big challenge. On the
one hand, the professor wants to avoid assigning too much busy work, as this takes away from
students’ time to prepare the reading material for class. On the other hand, some professors
(including yours truly) dislike having grades rest solely on one end-of-semester exam
performance. To balance these interests (something we’ll be learning a lot about this semester
in the constitutional law context), I divide your grade into three components. They are: (1)
classroom participation, (2) several short, low-key writing assignments spread over the course
of the semester (you can pick which ones), and (3) the final. The allocation of points will be as
follows:
Class participation = 20%
Writing assignments = 20%
Final = 60%
• Class Participation
I find that law school classes work best when students come to class prepared to discuss the
material, and when there is a good deal of lively discussion and interaction between teacher
and students in which many voices and perspectives participate. To encourage these
conditions in class, I will divide you into “law firms” of approximately five students each. You
and your “law partners” will be assigned to brief the cases assigned at regular intervals during
the semester, and may also receive additional instructions as to how to prepare this material
(such as to prepare one side of the argument or the majority or dissenters’ opinions).
I also will take class attendance each day through a sign-in sheet. (It goes without saying that it
is a serious honor code violation to falsify class presence.) To receive an excused absence you
must notify me beforehand unless this proves impossible in an emergency situation.
Provided that you attend class regularly and perform adequately in your law firm work, you will
receive full points for class participation. I value quality over quantity, and you should not feel
you must volunteer in every class. I do appreciate thoughtful comments and questions as the
course proceeds, and I will encourage this kind of voluntary participation. But I am very aware
that students who speak less in class may be every bit as “present” as students who tend to talk
more; I value both styles of class participation. I tend to call on students who look like they are
willing to speak, especially if they have not spoken recently, and I like to encourage new
participators. Once the “ice is broken” it is often easier to continue to volunteer to speak in a
conversation involving many participators and I want to encourage those of you who are
somewhat shy in this situation to work on the skill of “chiming in.”
One final point about class participation: Constitutional law often raises difficult, controversial
issues. We have to tackle these head on. My policy is that, in my classroom at least, no one
“owns” a position they express. Instead we must take on and experiment with all positions by
sympathetically exploring and seeking to understand them. I will purposely ask you to express
positions you don’t personally agree with, and I will greatly appreciate it if others besides me
help articulate the less “politically correct” viewpoints we will encounter. No one owns a
monopoly on right answers and I strive to establish a class atmosphere that values ideological
diversity. If you feel this is not occurring, I would appreciate you letting me know, either
directly or by bringing an anonymous complaint to my course dean’s fellow.
• In-Class Hypos
You will receive credit for handing in a total of four written analyses, of approximately one page
each, selecting from among the hypos we will discuss in class periodically, at the end of each of
our three main topic “units.” You should finish drafting your analysis of these hypos. after we
have discussed them in class so that you can benefit from those discussions. You have two
classes after we have finished discussing the hypos for each unit to get your write ups in to me.
Reminders of these deadlines appear on the syllabus. You must submit your write up to me in
hard copy at the beginning of class (not emailed please), and I will hand them back with my
hand written comments on them at the beginning of the next class. You are responsible for
keeping track of these copies over the semester and then handing all four into me (with my
comments and grades on them) at the end of the semester, as a type of writing “portfolio.” I
highly recommend that you choose hypos to write up that you find difficult and confusing, as
this will most help you with your legal analysis and writing ability.
I will grade your short write-ups on a 1 to 5 scale as follows:
5 - superior
4- very good
3- adequate
2 - needs more work
1 - inadequate
The four assignments will add up a maximum of 20 points and you may continue to rewrite
them for a higher grade based on my comments.
•Final
The final will be a four-hour, in-class, open book and open notes exam. It will be scheduled to
be taken collectively during exam period. It will consist entirely of short answer and essay
answers (the number of which will be determined and announced before end of the semester).
You will be permitted to electronically search your notes while taking the exam but may not cut
and paste any pre-prepared material into your exam answer. You may not use any kind of
recording containing class-related information during the exam (unless you have ADA
accommodations). You may have any written material you wish to have with you in the exam
(but you should expect to have little time to look through it). I encourage you to think of the
exam as a closed-book exam with the opportunity to quickly refresh your memory in case of a
nerves or a brain glitch.
I give this type of exam because (1) it is less painful than a take-home, and (2) it enhances bar
passage rates by acquainting students with the timed exam format (as empirical studies have
proved). You may not like it now but you will be glad you experienced this exam format later.
A few days before the final I will offer an optional review session, powered entirely by whatever
questions you wish to bring to the session for group discussion. After this group review I will
not take individual substantive questions. Before that, I will offer ample office hours. I also
encourage you to stop by during the semester with questions about the course or any other
matter. I enjoy getting to know you and you are never bothering me if you stop by. You may
sign up for appointments through MyWCL “Instructor Office Hours” or schedule with me, or
just drop by. A question asked in office hours is always an indication to me of what the whole
class could benefit from discussing, so please keep your office visits coming. I will set office
hours for this class after we’ve had a discussion about what times work best for your schedules
and am also always happy to schedule appointments at other times as well.
Reading Assignments
All assignments are to your cu stom casebook or to supplementary material loaded on MyWCL.
The twenty-eight entries roughly correspond to our twenty-eight class periods, though we may
of course get a bit behind and then have to adjust the schedule as the semester progresses.
***Before class starts: Read the Constitution, pp. xv-xxxi
CHAPTER I: THE SEPARATION OF FEDERAL POWERS
A. The Role of the Judiciary
1. Introduction (see reading above); The Authority for Judicial Review
Reading: pp. 1 - 13 (12 pages, and read ahead for next class)
Marbury v. Madison
Martin v. Hunter’s Lessee
Cohens v. Virginia
No law firm assignments
2. Intro. to Limits on Federal Judicial Power; the Method of Constitutional
Interpretation; Justiciability
Reading: pp. 13.8-62 (48)
District of Columbia v. Heller (LF 1, majority opinion; LF 2, dissents)
Clapper v. Amnesty International (LF 3, maj. op.; LF 4, dissent)
Obergefell v. Hodges (LFs 5 &6 maj.; LFs 7 & 8 dissents)
For all firms, focus on techniques of constitutional interpretation
B. The Division of Power between the Executive and
Legislature
3. Separation of Powers and Presidential Authority
Reading: pp. 62-83 (21)
Youngstown Sheet & Tube Co. v. Sawyer (LF 9) (maj.; LF 10, Jackson
concurrence; Douglas concurrence; LF 11, Frankfurter concurrence;
LF 12, dissents)
US v. Nixon (LF 13)
Clinton v. City of New York (LF 14)
4. Constitutional Issues in the Administrative State
Reading: pp. 83.9-119 (35)
INS v. Chadha (LF 15 & 16)
Morrison v. Olson (LF 17 & 18)
Meyers v. U.S. (LF 1 & 2)
Humphrey’s Executor v. US (LF 1 & 2)
Free Enterprise Fund v. Public Co. Accounting Oversight Bd. (LF 3 & 4)
NLRB v. Noel Canning (LF 5 & 6)
5. Allocation of Power in Conducting Foreign Policy
Reading: pp. 119.8 – 144.6 (25)
US v. Curtiss-Wright Export Corp. (LF 7)
Dames & Moore v. Regan, Sec. of Treasury (LF 8)
War Powers Resolution (LF 9)
Zivotofsky v. Kerry (all LFs)
6. Presidential Power in a Post 9/11 World
Reading: pp. 144.5-176.5 (32)
Hamdi v. Rumsfeld (LF 10, Hamdi; LF 11, U.S. gov’t)
Boumediene v. Bush (LF 12, 13 petitioners; LF 14, gov’t)
7. Synthesis; Review, Unit I, Separation of Powers, pp. 176-179
EXAMPLE 1-1-LFs 15, 16, 17
EXAMPLE 1-2- LFs 18, 1, 2
EXAMPLE 1-3-LFs 3, 4, 5
EXAMPLE 1- 4-LFs 6, 7, 8
EXAMPLE 1-5-LFs 9, 10, 11
EXAMPLE 1- 6 -LFs 12, 13, 14
EXAMPLE 1 -7-LFs 15, 16, 17
EXAMPLE 1-8- LFs 18, 1, 2
EXAMPLE 1-9- LFs 3, 4, 5
EXAMPLE 1-10-LFs 6, 7, 8
EXAMPLE 1-11-LFs 9, 10, 11
EXAMPLE 1-12-LFs 12, 13, 14
EXAMPLE 1-13- LFs 15, 16, 17
EXAMPLE 1-14-LFs 18, 1, 2
**NB. For submission of write-ups: due date is Class 11 **
CHAPTER II: DIVISION OF POWERS BETWEEN STATE
AND NATIONAL GOVERNMENTS
A. Federal Authority and State Limitations on it
8. The Scope of Congressional Authority I
Reading: pp. 181-218 (37)
McCulloch v. Maryland (all)
National Federation of Independent Business v. Sebelius (LF 3,
individual mandate; LF 4, Taxing Power; LF 5, Medicaid funding- for
each issue, know Court’s judgment and concurrences and dissents)
9. Congressional Power, the Commerce Clause, and the 10th Amendment (pre
1991)
Reading: 219-252 (33)
Gibbons v. Ogden (LF 6)
Historical notes
NLRB v. Jones & Laughlin Steel Corp. (LF 9, NLRB; LF 10, Steel Co.)
US v. Darby (LF 11)
Wickard v. Filburn (LF 12, farmer (Filburn); LF 13, Agriculture Sec.
(Wickard))
Heart of Atlanta Motel v. US (LF 14)
Katzenbach v. McClung (LF 15)
Perez v. US (LF 16)
Garcia v. San Antonio Metropolitan Transit Authority (LF 17, maj.
Opinion; LF 18, dissents)
10. Congressional Power and the 10th Amendment: 1991-present
Reading: pp. 252 -306 (54) (some will spill into next class)
United States v. Lopez (LF 7)
United States v. Morrison (LF 8)
Gonzales v. Raich (LF 9)
New York v. US (LF 1, maj. Op.; LF 2, concur./dissent)
Printz v. US (LF 3, maj.; LF 4, dissent)
Reno v. Condon (LF 5)
11. Congressional Power under the Reconstruction Amendments
Reading: pp. 306.8-337.3 (30)
US v. Morrison (LF 6, Morrison, arguing VAWA unconstitutional); LF 7,
US)
Katzenbach v. Morgan & Morgan (LF 8, maj. Op.; LF 9, dissent)
City of Borne v. Flores
Shelby County v. Holder (LF 10)
12. Other Sources of Congressional Authority
Reading: pp. 337-354 (17)
a. The Necessary and Proper Clause
United States v. Comstock (LF 6, Comstock; LF 7, US)
b. The Taxing and Spending Power
United States v. Butler
Chas. C. Steward Mach. Co. v. Davis
Sabri v. US
South Dakota v. Dole
B. State Authority and Federal Limitations on it
13. Preemption
Reading: pp. 354-379.1 (24)
Express:
Lorillard Tobacco Co. v. Reilly (LF 11 MA A.G.; LF 12, Lorillard
Tobacco)
Implied/Conflicts:
Florida Lime and Avocado Growers v. Paul (LF 13)
Implied/Fed. Objective:
Pacific Gas & Elec. v. State Energy Resources Conserv. & Dev.
Comm’n (LF 14, Pacific Gas and US; LF 15, State Comm’n)
Implied/Occupies Field:
Arizona v. US (LFs 16, 17, 18)
14. The Dormant Commerce Clause and Art. IV, Privileges and Immunities
Clause
Reading: pp. 379-415.3 (35)
HP Hood & Sons v. Du Mond (LF 1)
Camps Newfound/Owatonna v. Town of Harrison (Thomas, J.
dissenting) (in notes) (LF 1)
South Carolina State Highway Dept. v. Barnwell Bros. (LF 2)
Southern Pacific Co. v. Arizona (LF 3)
Facially Discriminatory Laws:
City of Philadelphia v. New Jersey (LF 4)
Hughes v. Oklahoma (LF 5)
Facially Neutral Laws:
Hunt v. Washington State Apple Ad. Comm’n (LF 6)
Exxon Corp. v. Governor of Md. (LF 7)
State of Minnesota v. Clover Leaf Creamery Co. (LF 8)
Dean Milk Co. v. City of Madison, WI (LF 9)
Facially Discriminatory but Upheld
Maine v. Taylor & US (LF 10)
Art. IV Privileges and Immunities Clause
Toomer v. Witsell (LF 11)
United Building Trades v. City of Camden (LF 12)
15. Synthesis and Review, Unit II, Federalism, pp. 415-18
EXAMPLE 2-1- LFs 1, 2, 3, 4
EXAMPLE 2-2-LFs 5, 6, 7, 8
EXAMPLE 2-3-LFs 9, 10, 11, 12
EXAMPLE 2-4-LFs 13, 14, 15, 16
EXAMPLE 2-5-LFs 17, 18, 1, 2
EXAMPLE 2-6-LFs 3, 4, 5, 6
EXAMPLE 2-7-LFs 7, 8, 9, 10
PLUS HYPOS LOADED IN MYWCL (ONLINE)
**NB. For submission of write-ups: due date is Class 19 **
CHAPTER III: INDIVIDUAL RIGHTS UNDER THE U.S.
CONSTITUTION
A. The Structure of the Constitution’s Protection
of Civil Rights and Liberties
16. Application of the Bill of Rights to the States
Reading: pp. 419- 450.8 (31)
Barron v. Mayor & City Council of Baltimore (LF 5)
Slaughter-House Cases (LF 6, butchers; LF 7, maj. Op.; LF 8, dissent)
Saenz v. Roe (LF 9, maj. Op.; LF 10, dissent)
Palko v. Connecticut (LF 18)
Adamson v. California (LF 1)
Duncan v. Louisiana (LF 11)
McDonald v. City of Chicago (LF 12, plaintiffs; LF 13, City; LF 14, maj.
Op.; LF 15, Stevens dissent; LF 16, Scalia concur.; LF 17, Thomas
concur.)
17. The State Action Requirement
Reading: pp. 450-481.7 (31)
The Civil Rights Cases (LF 18)
Public Functions Exception
Marsh v. Alabama (LF 1)
Jackson v. Metropolitan Edison (LF 2, maj. Op.; LF 3, dissent)
Terry v. Adams (LF 4)
Evans v. Newton (LF 5)
Amal. Food Employees Local 590 v. Logan Valley Plaza (LF 6)
Lloyd Corp. v. Tanner (LF 7)
“Entanglement” Exception
Shelley v. Kraemer (LF 8)
Edmonson v. Leesville Concrete Co. (LF 9)
Government Regulation
Burton v. Wilmington Parking Auth. (LF 10)
Moose Lodge No. 107 v. Irvis (LF 11, maj. Op.; LF 12, dissent)
Norwood v. Harrison (LF 13)
B. The Equal Protection Clause
18. Equal Protection Methodology; Rational Basis Review
Reading: pp. 481.7- 503 (22)
Roemer v. Evans (LF 14)
US Dep’t of Ag. v. Moreno (LF 15)
City of Cleburne v. Cleburne Living Center (LF 16)
Also review Obergefell from class 2
19. Race I (Historical Perspective)
Reading: pp. 503.8-524 (21)
Dred Scott v. Sandford (LF 17)
Korematsu v. US (LF 18)
Loving v. Virginia (LF 1)
Palmore v. Sidoti (LF 2)
Plessy v. Ferguson (LF 3)
20. Race II (Contemporary)
Reading: pp. 524.8-563 (38)
Brown v. Board of Education (LF 4)
Washington v. Davis (LF 5)
McCleskey v. Kemp (LF 6)
Grutter v. Bollinger (LF 7)
Gratz v. Bollinger (LF 8)
Plus supplemental materials on MyWCL
21. Gender; Alienage
Reading: pp. 563.4 -598.6 (35)
Frontiero v. Richardson (LF 9)
Craig v. Boren (LF 10)
US v. Virginia (LF 11)
Mississippi v. Hogan (LF 12)
Michael M. v. Superior Court of Sonoma County (LF 13)
Rostker v. Goldberg (LF 14)
Plyer v. Doe (LF 15)
Also read carefully the notes/short case excerpts on age, sex
orientation, disability and wealth
C. Due Process
22. Due Process protection for Business “Economic” Rights: the Rise and Fall of
Lochnerism
Reading: pp. 598.6 -621.3 (23)
Lochner v. New York (LF 16)
Muller v. Oregon (LF 17)
Adkins v. Children’s Hospital (LF 18)
West Coast Hotel v. Parrish (LF 1)
US v. Carolene Products Co. (LF 2) - BE SURE TO READ “note 4,”
WHICH IS LABELED AS NOTE 138 IN OUR TEXT, P. 828
Williamson v. Lee Optical (LF 3)
23. Modern Substantive Due Process: Privacy I
Reading: pp. 621-666 (45)
Family Autonomy
Loving v. Va. (LF 4)
Moore v. City of East Cleveland (LF 5)
Meyer v. Nebraska (LF 6)
Reproductive Autonomy
Skinner v. Oklahoma (LF 7)
Griswold v. Connecticut (LF 8)
Roe v. Wade (LF 9)
Planned Parenthood v. Casey (LF 10)
24. Privacy II
Reading: pp. 666-714.1 (47)
Government Regulation of Abortion
Gonzales v. Carhart (LF 11)
Maher v. Roe (LF 12)
Casey (again) (LF 13)
Bellotti v. Baird (LF 14)
Medical decisions
Cruzan v. Director, Missouri Dept. of Health (LF 15)
Washington v. Glucksberg (LF 16)
Vacco v. Quill (LF 17)
25. The Constitution and the Fundamental Right to Vote
Reading: pp. 714.2 -750.6 (36)
Harper v. Va. State Bd. of Elections (LF 18)
Kramer v. Union Free School Dist. (LF 1)
Crawford v. Marion Co. Election Board (LF 2, maj. op.; LF 3, dissent)
Reynolds v. Sims (LF 4 & 5)
Wesberry v. Sanders (LF 6)
Arizona State Legislature v. Arizona Independent Redistricting
Commission (all)
26. Procedural Due Process I
Reading: pp. 750-779.5 (29)
What is a Deprivation?
Daniel v. Williams (LF 7)
County of Sacramento v. Lewis (LF 8)
DeShaney v. Winnebago Co. Dept. of Social Services (LF 9)
Town of Castle Rock v. Gonzales (LF 10)
What Process is Due?
Goldberg v. Kelly (LF 11)
Board of Regents v. Roth (LF 12)
27. Procedural Due Process II
Reading: pp. 779.6-806.5 (27)
What Are Liberty Interests?
Goss v. Lopez (LF 13)
Paul v. Davis (LF 14)
Sandin v. Conner (LF 15)
Mathews v. Eldridge (LF 16)
Dist. Attorney’s Office for the Third Judicial District v. Osborne (LF 17)
28. Synthesis, and Review: Unit Three, Individual Rights, pp. 806-12
Law firms may choose their hypos., but try to do at least three raising different
types of issues.
EXAMPLE 3-1
EXAMPLE 3-2
EXAMPLE 3-3
EXAMPLE 3-4
EXAMPLE 3-5
EXAMPLE 3-6
EXAMPLE 3-7
EXAMPLE 3-8
EXAMPLE 3-9
HYPO 3-10
HYPO 3-11
HYPO 3-12
HYPO 3-13
HYPO 3-1R
**NB. For submission of write-ups: due date is 3 days from our last class for all
Unit 3 hypos and all revised hypos from earlier units **
OPTIONAL REVIEW SESSION PRIOR TO FINAL, DATE AND TIME TBD