Constitutional Law II (Spring 2021)

Class Instructors
ProfessorTeaching Assistant
Tom KeckVinessa Buckland
tmkeck[at]maxwell.syr.eduvdbuckla[at]syr.edu
(315) 443-5862
Class SessionsOffice Hours
T, Th 9:30-10:50M 1-2, W 12-1, Th 1:30-2:30
Watson Theater and via Zoomvia Zoom

Prerequisite: It is customary to complete Constitutional Law I (PSC 324) before taking this class. Students who have not done so should speak with Prof. Keck during the first week of class.

Class Delivery Format: Due to the COVID-19 restrictions in place on campus, this class will be delivered in a hybrid format. So long as public health conditions allow, the class will meet twice weekly in Watson Theater. The COVID-safe capacity of the room can accommodate 36 students, about half of our enrollment. After assessing how many students plan to attend class in person, I may announce a rotation system of some kind. All students attending in person should wear masks and practice social distancing.

The class will simultaneously meet live via Zoom. Barring technical difficulties, students attending via Zoom should be able to hear the professor’s lecture and see his slides just as well as students attending in person. Hearing the comments and questions from students in the classroom may be harder. A teaching assistant will be present on the Zoom and available to field questions in the chat. All Zoom sessions will be recorded and posted to Blackboard.

The delivery format is subject to change as the semester proceeds.

A Note About Zoom: If you haven’t done so already, please go to zoom.syr.edu, log in with your NetID to enable your account, and install Zoom on all devices that you will be using to access our class sessions. Zoom can be run directly from a web browser, but we will be using some features (such as breakout groups) that work best (or only) if Zoom is installed on your device. Zoom links for our class sessions and office hours are available in Blackboard.

Course Content

The framers of the U.S. Constitution tried to design a government that would be vigorous enough to serve the people’s needs, but not so powerful as to trample on the people’s liberties. Likewise, they sought to design a government that would be responsive to the demands of popular majorities, but that would also respect the rights of minorities. They came up with a Constitution that has survived for more than 200 years, so they must have been doing something right. Still, their design included a number of features that were controversial at the beginning and a number of others (or sometimes the same ones!) that are controversial today.

For example, the Constitution’s severely fragmented system of government authority has sometimes prevented the federal government from responding rashly to the demands of the moment, but at other times, it has prevented the government from addressing important national problems. In similar fashion, the complex set of indirect elections and appointments that the framers designed for choosing our nation’s lawmakers has sometimes succeeded in “filtering” and improving the public will, but at other times, it has prevented the public’s voice from being heard at all. Our life-tenured federal judges have sometimes stood as valiant defenders of individual liberty and minority rights, but at other times, they have served as shields of privilege, power, and the status quo. And the checks and balances designed to prevent autocratic government have seemed to many Americans less than fully effective in recent years.

Building on our efforts in Constitutional Law I, we will seek to evaluate the performance of this constitutional system by examining its evolution over time. Moving chronologically from the mid-twentieth century (where Con Law I left off) to the present, we will assess three related strategies adopted by the framers to empower democratic government while also limiting it. The framers sought to limit governmental power by (i) dividing it among many hands, (ii) subjecting it to the regular check of democratic elections, and (iii) authorizing the judicial protection of certain fundamental rights. We will examine these strategies in the context of a wide range of legal and political conflicts–involving the legitimate scope of presidential authority during wartime, the right to bear arms, the resolution of disputed vote counts in a presidential election, race-conscious affirmative action policies, marriage equality, and more.

Learning Objectives

By the end of the semester, all students will have widened and deepened their knowledge of the U.S. constitutional system and will have improved their critical reading and writing skills. This knowledge and these skills will help students think like a lawyer; if you go on to law school, you will get lots more practice at this, but this course will provide an introduction. The course will also help students think like a citizen. Sometimes, we will be talking and writing about the Constitution as if we were lawyers or judges, but more often we will do so as citizens (though I recognize that not everyone in the class is a citizen of the U.S.). As citizens, it is important for us to understand what role the Supreme Court and the Constitution are supposed to play in our political system, how well they are actually functioning in practice, whether and how this performance has changed over time, and how best it might be improved in the future.

In sum, the most important goals of the course are to help you develop an enriched understanding of the principles embedded in this country’s fundamental law and a refined ability to determine on your own whether the practice of American politics is faithful to these principles. As such, the course addresses controversial topics that raise difficult questions about our personal experiences and political beliefs, and it is therefore essential that students make every effort to tolerate competing views and to treat each other with concern and respect.

Course Readings

Most of the readings for the course are from the following book, which is available for purchase at the SU Bookstore:

  • Howard Gillman, Mark A. Graber, and Keith E. Whittington, American Constitutionalism: Powers, Rights, and Liberties (Oxford University Press, 2015). ISBN: 978-0-19-934338-6.

If you took Con Law I with me last Fall, it’s the same book we used for that class. If you do not already own it, it is available for purchase at the SU Bookstore. I ordinarily make it available on 2-hour reserve at Bird Library as well, but doing so may not be possible this year due to COVID restrictions. Some additional required readings will be available online; these readings are linked from the online version of this syllabus. The following resources may be useful as well:

  • U.S. Supreme Court (official website)
  • SCOTUSBlog (favorite blog of Supreme Court junkies everywhere)
  • Nexis Uni (formerly called Lexis-Nexis, a great resource for decisions from all levels of the state and federal judiciary)
  • Oyez (audio files of hundreds of Supreme Court oral arguments)
  • RadioLab’s More Perfect (great podcast about SCOTUS)

Course Expectations

Grades will be based on a 3-page memo, a 5-page paper (which will be submitted in two parts), an 8-10 page paper (which will also be submitted in two parts), a final exam, and an assessment of your active engagement with the course material.

The papers (together, 60% of your grade)

A substantial portion of your final grade will be determined by your completion of the writing assignments described below. To excel in the class, you will need to produce papers that demonstrate your close reading of, and active engagement with, the required readings that are assigned in the course schedule. The 5-page paper requires no additional or outside reading, and I discourage you from doing any. The 3-page memo and 8-10 page paper may require some research of your own, but that research should be closely linked with an analysis of material drawn from the course syllabus. In all papers, I am looking for a clear argument of your own that responds to the assigned prompt and that is supported by a careful, detailed, and thoughtful discussion of the materials we have read. Since good writing comes from careful revision, I encourage you to discuss your papers with me and/or the teaching assistant before they are due. In addition, please consult my paper expectations guide before completing each assignment.

Due dates for each paper assignment are listed in the course schedule below. Note that some of the due dates are on class days (Tue. or Thur.), but some are on other days. All papers should be submitted through Blackboard, under the Assignments tab.

Assignment #1: 3-page Senate staff memo (10%)

Each student must submit a memo analyzing the article of impeachment against Pres. Trump, approved by the U.S. House of Representatives on Jan. 13, 2021. The text of the article is linked here, and some additional related readings are linked in the course schedule below. You should draft a memo as if you were a staffer for one current member of the U.S. Senate, and you should specify which Senator you work for. (You can do this in memo format; e.g., “To: Senator Lisa Murkowski,” “From: Your name,” etc.) The memo should be approximately three pages, typed and double-spaced. It should provide the key information necessary for your Senator to cast an informed vote in the case. At a minimum, this should include a brief description of the key facts at issue, some reference to the purposes of the congressional power of impeachment, and an explicit recommendation as to how your Senator should vote. If there are prior historical examples that seem to you particularly apt, feel free to make reference to them.

Assignment #2: 5-page paper, in 2 parts (20% total)

In a paper of approximately five pages, typed and double-spaced, answer the following questions: What were the key constitutional developments of the Warren Court era? Why did those developments occur? Did they have a positive or negative impact on our Constitution? (Earl Warren was Chief Justice of the United States from 1953-1969; the “Warren Court” refers to the Supreme Court during that period.) From the mid-1950s through the 1960s, the Warren Court issued a string of landmark decisions across a wide range of legal questions. Stepping back from the details of the individual cases, is there some coherent way to understand what the justices were up to? I.e., some theme or thread that seems to link many of the cases? Describe, explain, and evaluate these developments. Be sure to provide specific examples in support–preferably, citations to at least six decisions contained in our course readings, with direct quotations from at least three of them.

This assignment will be submitted in two parts–first, a one-page partial draft that articulates a provisional thesis and identifies several cases that seem relevant to the thesis, and second, a five-page final draft. These components are referred to as assignments 2A and 2B in the course schedule below, which indicates the due dates for each component. The one-page version is worth 5% of your final grade; the five-page version is worth 15%.

Assignment #3: 8-10 page paper, in 2 parts (30% total)

In a paper of approximately 8-10 pages, typed and double-spaced, answer one of the following two questions.

Option A: Identify some significant way in which understandings of the Constitution have changed during your lifetime. I mean that last part literally; your paper should focus on some set of constitutional developments that have taken place from the year of your birth–which you should indicate somewhere in the paper–to the present. For those of you who are of traditional college age, the constitutional text itself has not been amended during your lifetimes; the task here is to identify some key ways in which its meaning has changed even though its words have not. Once you’ve identified the developments you would like to examine, you should explain and evaluate them. In other words, as with assignment #2, you should provide a clear indication of what changed, why it changed, and whether that change was good or bad.

Option B: Identify some significant way in which our constitutional democracy is currently operating in ways that fail to live up to key principles of constitutionalism and/or democracy, as you understand them. What are those principles? Define them as clearly as possible. How precisely is our political system failing to live up to those principles. Be as concrete and specific as possible. What episodes from our constitutional history can best help us understand the current situation? Drawing on that history, propose some institutional reforms that would help alleviate the failures you have identified.

Both versions of this assignment are large and challenging, and intentionally so. As such, I encourage you to begin thinking about the assignment as soon as possible, and to raise any concerns you have during class or office hours. As mentioned above, be sure to consult my paper expectations guide. And to reiterate a couple points, your goal for this paper should be to develop and advance a clear argument of your own, supported by a careful, detailed, and thoughtful discussion of some of the required readings for this course (and for Con Law I, where relevant). Any additional research you do should supplement rather than displace your analysis of the relevant readings from the syllabus. In the course of your argument, you should reference at least a half-dozen of the primary documents that are reprinted in the casebook, and perhaps many more. I plan to nominate the best paper completed for this assignment for a department-wide award.

This assignment is due in two parts. Assignment #3A is to produce a partial draft, approximately four (4) pages in length, in which you identify and describe the constitutional developments or defects of interest and begin to articulate an argument about how and why these developments or defects are significant. Assignment #3B is the complete 8-10 page paper, as described above. These components are worth 5% and 25% of your final grade, respectively. Due dates for both components are listed in the course schedule below.

Final exam (25% of your grade)

At the end of the semester, we will have a comprehensive final exam. I will provide more details as the semester proceeds.

Active engagement, in and out of class (15% of your grade)

This portion of your grade will be based on your demonstrated commitment to active engagement with the course material. You can demonstrate this engagement in a variety of ways, detailed below. The short version is that the closer you come to eating, sleeping, and breathing Con Law over the next few months, the better you will do.

One important component is attendance in class. If you are not physically present, either in the classroom or on Zoom, you are missing an important opportunity to talk with the rest of us about the course material. If you miss an occasional class for good reason, watching the recorded sessions will help you keep up with what you have missed. But if this becomes a regular habit, your active engagement grade (not to mention your learning) will suffer. When you do miss class, you should let me know when and why, and you should record the date and reason for your own records.

In addition to your physical presence, active engagement also requires diligent preparation. Nobody is perfect, but if you regularly complete the assigned readings prior to the relevant class session, you will be in much better position to make thoughtful contributions to class discussion.

We may occasionally have some in-class writing assignments (typically unannounced). These assignments will provide additional opportunities for you to demonstrate your engagement with the course material.

Finally, you can demonstrate your engagement by completing one or more “Con Law in the Wild” assignments. Anytime between now and the last day of class, you should notice and identify at least one real-world situation for which the content of our course is relevant. Ideally, this situation will involve actual human interaction (e.g., a conversation with a friend, family member, lawyer, police officer, public official, etc.). But if you can’t come up with anything like that, it can involve something you read, watched, or listened to in print or online. When I come across online events that might be a good fit, I will announce them in class.

Once you’ve got something, jot down some notes (or record a voice memo) to make sure you remember the details. Then come to office hours and verbally describe the situation and its relevance to the professor or TA. (We may also make some class time available for some students to do so.) You are welcome to complete this assignment as many times as you like, but every student should do so at least once.

Your active engagement grade will be assigned as follows: On the last day of class, you should submit a one-page self-assessment in which you assign yourself a letter grade (A, B+, etc.) for this component of the course and write a couple paragraphs explaining and justifying that grade. In this self-assessment, you should address the following questions:

  • How many times were you absent from class? When and why? (Please list the dates, with an explanation for each one.) If the absence was excused, did you notify Prof. Keck in advance? When you missed class, did you review the lecture recording? How helpful did you find these?
  • How often did you participate in class discussions? When you didn’t participate, were you nonetheless alert and prepared for class? If so, then why didn’t you speak up on those occasions?
  • Approximately how many pages of notes did you take during each class session? When and how did you review those notes later on? How helpful did you find them?
  • During class, how often did you do anything that might have distracted your fellow students (e.g., chatting, sleeping, texting, opening your laptop, arriving late, leaving the room during class)?
  • How often did you visit the professor or teaching assistant during office hours? How many “con law in the wild” events did you discuss?

The teaching assistant and I will read your self-assessment, compare it with our own perceptions, combine those with your performance on the con law in the wild assignments and any in-class writing, and then assign you a grade for active engagement.

Course Policies

Attendance and course readings: As noted above, successful performance in this course will require eating, sleeping, and breathing Con Law. More literally, it will require regularly reading, writing, thinking, and talking about the course material. I’ve been teaching constitutional law for more than twenty years now, and I have yet to have a student find a shortcut around this fact. Reading, writing, thinking, and talking about the course material. Every day. Or as close to that as you can manage.

Among other things, this task will require regular attendance in class. When you miss a class, you will usually be able to review a recording of that lecture. These recordings are generally good enough to fill in the gaps caused by occasional absences, but they are not a good substitute for regular attendance. When you attend live, you able to ask questions when you don’t understand something; when you review a recording after the fact, you’re on your own until the next available office hours. As such, irregular attendance will negatively affect your grade both directly (in the active engagement portion) and indirectly (by hindering your performance on exams and papers).

Laptops and other electronic devices: When attending class in person, your jobs are to listen actively, take careful notes, reflect on the concepts we are discussing, and participate in those discussions when you have something to say. None of these jobs requires a laptop, a tablet, or a phone, and the use of such devices during class can be distracting to students sitting nearby. As such, all electronic devices must be turned off and put away promptly at 9:30 a.m. and must stay put away until 10:50 a.m. FWIW, educational research has demonstrated that taking notes by hand (i.e., with pen or pencil) significantly improves long-term retention and understanding of concepts; click here, here, or here for summaries of some of this research. When attending class via Zoom, you’ll obviously be using a device, but I still recommend taking notes with pen and paper, and I also recommend disabling email and other messaging apps during class.

Grading policy: Most of the written assignments for this course will be graded by a teaching assistant. If you have any questions about these written assignments, either before or after they are due, you are welcome to speak with either me or the TA. If you are dissatisfied with your grade on any assignment graded by a TA, you may appeal that grade to me. To do so, you should submit a clean copy of the paper to me, which I will re-grade from scratch. This means that you could receive a grade that is lower, higher, or the same as the grade originally assigned.

Late paper policy: Late papers are discouraged, but I was a student once upon a time, and I remember that crises sometimes come up. If you will have trouble producing your best work by the relevant deadline, come discuss the situation with me (not with the TA). If and when I agree to offer an extension, I will grade the late-arriving paper myself.

Academic integrity: The Syracuse University Academic Integrity Policy holds students accountable for the integrity of the work they submit. This means that it is your responsibility to be familiar with the policy in general and to learn about the specific expectations of each of your instructors regarding proper citation of sources in written work. The policy governs the integrity of work submitted in exams and assignments as well as the veracity of signatures on attendance sheets and other verifications of participation in class activities. Serious sanctions can result from academic dishonesty of any sort, but in my experience, the most common form of such dishonesty is plagiarism, which consists of the failure to properly credit the sources of anyone else’s ideas, information, or language that are incorporated into your own work. If you are caught violating any of these rules, I will assign an F for the course and then refer the matter to the College of Arts & Sciences academic integrity coordinator for additional action. All papers for this course will be submitted electronically through Turnitin.com, a resource which aids students in assessing whether they have properly cited all sources and aids instructors in identifying instances of plagiarism.

Future use of student academic work: Any work that you produce as part of your participation in this course may be used for educational purposes in future courses. For example, if you write a very good paper, I may distribute it in future classes as a model. If and when I do so, I will always remove your name so that the work is rendered anonymous. In addition, Turnitin.com will maintain copies of all submitted papers in order to enhance its efforts to detect future plagiarism.

Reasonable accommodation: If you believe that you need accommodations for a disability, please contact the Center for Disability Resources (CDR; formerly known as ODS), located in Huntington Hall (443-4498). CDR is responsible for coordinating disability-related accommodations and will issue Accommodation Authorization Letters when appropriate. Since accommodations may require early planning and generally are not provided retroactively, please contact CDR as soon as possible.

Religious holidays: In accordance with SU policy, I will excuse any absences that result from religious observances, provided that you notify me in advance of the planned absence.

Office hours and email communication: The scheduled office hours are listed at the top of this syllabus. They will sometimes be staffed by me, sometimes by the TA. To help us ensure that you are each mastering the course material to the best of your ability, all students are required to visit office hours at least once during the semester. We hope you’ll come with an interesting question, but you should come at least once even if you have no questions. Failure to do so by the end of the semester will result in a failing score for the active engagement portion of your grade.

All office hours will be conducted via Zoom; the links can be found on Blackboard. If you cannot make it during the regularly scheduled times, please email me and the TA with an indication of some alternative days/times when you’re free; one of us will get back to you with an appointment. Likewise, if you have a quick question that can likely be answered by email, send it to both me and the TA; whichever one of us gets to it first will reply.

Note also that I will sometimes use Blackboard’s “Send email” feature to contact all members of the class. As such, you are responsible for regularly checking your SU email account.

Resources for Students

Academic support services: SU provides a variety of tutoring and academic support services, and I encourage you to avail yourself of these resources. Doing so may help you learn the course material better, determine the best strategies for studying that material, improve your writing skills, and reduce stress about your success in the course. Tutoring centers include the Tutoring & Study Center (TSC), the Writing Center, the Math and Calculus Clinics, the Physics Clinic, the Chemistry Clinic, and the Athletics Academic Services Center. Further details are available here.

Mental health services: Mental health and overall well-being are significant predictors of academic success. As such it is essential that during your college experience you develop the skills and resources effectively to navigate stress, anxiety, depression and other mental health concerns. Please familiarize yourself with the range of resources the Barnes Center provides (ese.syr.edu/bewell) and seek out support for mental health concerns as needed. Counseling services are available 24/7, 365 days a year, at 315.443.8000.

Course Schedule

All required readings for the course are bulleted below. Most of the readings are from the Gillman, Graber, Whittington book, referred to in the schedule as “GGW”. Other readings are generally available on-line, linked from this syllabus.

As you may remember from Con Law I, our reading schedule is pretty ambitious. Do your best to keep up, reading all assigned pages prior to the class session for which they are listed. If you fall behind, come see me and we will develop a plan together for catching up.

Tues., Feb. 9: Introduction to the Course

No required reading for today, but we’ll spend some time discussing sec. 3 of the 14th Amendment and whether and how it applies to the events of Jan. 6, 2021. If you’re interested in learning more, I recommend this recent piece by one of the authors of our textbook:

Thurs., Feb. 11: Impeachment

On Jan. 13 of this year, the U.S. House of Representatives impeached Pres. Trump for incitement of insurrection against the U.S. government. The text of that impeachment resolution is linked below, along with several related readings. Read the first three bulleted documents–and if you’re able, one or more of the recommended readings as well–and come to class prepared to discuss whether you would recommend a vote to convict Pres. Trump, if you were a U.S. Senate staffer.

Recommended reading

Monday, Feb. 15: Assignment #1 is due today. The assignment details are in the Course Expectations section above.

Tues., Feb. 16: Two Foundations of Modern Constitutional Law

In the early 1950s, the Vinson and Warren Courts issued two decisions whose legacies have shaped a fair amount of the constitutional development that we will discuss this semester: Youngstown Sheet & Tube Co. v. Sawyer (1952) and Brown v. Board of Education (1954). We read them both in Con Law I, but you should re-read them this week. Make sure you understand the basic legal holdings in each case–which at first glance don’t have much to do with each other–but try also to identify some parallels between the two cases. What sort of approach to the constitutional text did the justices adopt in these cases? What sort of background historical conditions seem to have influenced their decisions?

  • GGW, 534-543, 597-600 (in case some students haven’t obtained the textbook yet, I’ve scanned these pages and put them on Blackboard)

I. The Constitution and the Long 1960s: A Rights Revolution

The period from 1954 to 1973 witnessed a remarkable expansion of constitutional rights and liberties in the United States. Historians sometimes call this period “the long 1960s.” Why did this expansion take place when it did? Why not sooner? Did it fall short in some ways? Were there any ways in which it went too far?

Thurs., Feb. 18: The Civil Rights Movement and the Constitution

Almost 100 years after the 13th, 14th, and 15th amendments were ratified, the reality of American law finally started to catch up with the promise of these constitutional guarantees. Why? In addition to the readings listed below, I also recommend these GGW materials on the Montgomery bus boycott.

Tues., Feb. 23: Free Speech in the 1960s (and a Quick Review of Free Speech before the 1960s)

Assuming that free speech is very important, but that there are some instances in which government should be allowed to restrict it, what are the Court’s options for drawing this line? Did the Court successfully do so in the Dennis, Sullivan, Brandenburg, Chaplinsky, or Roth cases? In addition to the required readings below, I recommend Bell v. Maryland (1964). 

Thurs., Feb. 25: The Anti-War Movement and the Constitution

Continuing our discussion from last class, are there any circumstances in which the government should be allowed to restrict anti-war speech? Recalling the WWI-era cases from Con Law I, how did the Court’s approach to this question shift in Vietnam-era cases like NYT v. U.S. (the Pentagon Papers case), O’Brien, Tinker, and Cohen? Besides the freedom of speech, what other key constitutional rights are typically of heightened relevance during wartime?

Tues., Mar. 2: The Warren Court and the Democratic Process

In the readings below, pay particular attention to Baker v. Carr (1962) and Reynolds v. Sims (1964). Why did Chief Justice Warren say these were the most important decisions of his time on the Court? Is the logic of these decisions consistent with the Court’s subsequent holding in Richardson v. Ramirez (1974)?

Note that the second “reading” below is a podcast, about 44 min. long. In addition to these required readings, I also recommend taking a look at Harper v. Virginia Board of Elections (1966).

Thurs., Mar. 4: Church and State in the 1960s and 70s

Three key cases to focus on today–Engel v. Vitale (1962), Wisconsin v. Yoder (1972), and Lemon v. Kurtzman (1971). For each of them, try to figure out how they would/should guide the Court in deciding religious freedom disputes today.

Mon., Mar. 8: Assignment #2A (the one-page partial draft) is due today.

Tues., Mar. 9: Economic Justice and the Constitution

Just one short reading today, focused on San Antonio v. Rodriguez (1973). This case involved the constitutionality of unequal patterns of public school funding across districts, with the Court called upon to decide whether and how the Fourteenth Amendment equal protection clause guarantees any measure of economic justice. Pay particular attention to Justice Thurgood Marshall’s arguments on this point. If you’re interested in further reading in this vein, I recommend Dandridge v. Williams (1970) and Lyng v. United Auto Workers (1988).

  • GGW, 674-677

Thurs., Mar. 11: The Women’s Movement and the Constitution I

Today’s reading focuses primarily on Frontiero v. Richardson (1973) and U.S. v. Virginia (1996). Is the Court’s approach to gender discrimination the same in these two cases? Is it the right approach, in your view? What was the purpose of the Equal Rights Amendment (ERA)? Since the proposed amendment was never ratified, was the effort a failure?

  • GGW, 689-695, 954-959
  • Radiolab, More Perfect podcast, “Sex Appeal” (online audio)

Tues., Mar. 16: The Women’s Movement and the Constitution II

Before reading the pages below, think about this question: Are state legislatures allowed to impose criminal bans on contraception and/or abortion? Once having read Griswold v. Connecticut (1965) and Roe v. Wade (1973), did anything in the justices’ opinions alter your thinking? What was it?

  • GGW, 556-561, 648-657

Thurs., Mar. 18: The Constitutional Rights of Criminal Defendants

Why did President Richard Nixon talk so much about the “criminal forces” and the “peace forces”? In today’s reading, pay particular attention to the Gideon, Mapp, and Miranda decisions.

  • GGW, 490-494, 603-614, 695-699

Mon., Mar. 22: Assignment #2B (the 5-page paper on the Warren Court) is due today.

Tues., Mar. 23: Wellness Day. No class today.

II. When the Country Turns Right, Does the Constitution Turn With It?

After FDR’s and LBJ’s Democratic Party dominated American politics for more than thirty years, the country took a right turn, beginning with Richard Nixon’s election in 1968, picking up steam with the “Reagan revolution” of 1980 and the two President Bushes, and reaching its peak during the Trump era. To what extent was this rightward electoral turn mirrored by a rightward constitutional turn? How and why did this happen?

Thurs., Mar. 25: Partisan Realignment and Constitutional Change: Nixon, Reagan, Bush, and the Courts

Tues., Mar. 30: Civil Rights in a Conservative Era I

Before reading the cases assigned for today, think about this question: Does the Constitution prohibit, allow, or require public universities to make explicit efforts to enroll diverse student bodies? Then read Moose Lodge, Swann, Washington v. Davis, Croson, and especially University of California v. Bakke. (All available in the GGW pages listed below.) Is there anything in these opinions that altered your thinking? Pay particular attention to Justice Powell’s and Justice Marshall’s opinions in Bakke.

  • GGW, 626-628, 679-689, 801-807

Thurs., Apr. 1: Civil Rights in a Conservative Era II

Continuing with our discussion of affirmative action, is there anything in Grutter v. Bollinger (2003) or Parents Involved v. Seattle School District (2007) that altered your thinking? In addition to the readings below, I recommend this podcast on the architect of the Court’s recent affirmative action decisions.

Tues., Apr. 6: Executive Power I: The Age of Watergate

Thurs., Apr. 8: Executive Power II: The Administrative State

The Reagan/Bush era featured recurring constitutional conflicts between Congress and the Presidency regarding the locus of government regulatory authority, particularly in the areas of environmental and immigration law. On the environmental front, in addition to the required readings here, I recommend taking a look at Whitman v. American Trucking Association (2001) and Massachusetts v. EPA (2007). For today, however, we’ll focus mostly on the competing efforts by Presidents Obama, Trump, and Biden to regulate immigration, including Trump’s effort to use emergency powers to order the construction of a border wall without congressional support. The Court’s 1983 decision in INS v. Chadha played a key role in these events; see if you can figure out why.

Mon., Apr. 12: Paper assignment #3A is due today.

Tues., Apr. 13: Executive Power III: National Security since 9/11

The terrorist attacks of September 11, 2001 were followed by recurring constitutional conflicts regarding the scope of presidential power in the realm of national security. Most of these conflicts took place during the George W. Bush administration, but they continued during the Obama and Trump eras as well. In addition to the required readings below, I also recommend Hamdan v. Rumsfeld (2006), and Harold Hongju Koh’s “The Obama Administration and International Law,” and Jack Goldsmith’s The Terror Presidency.

Thurs., Apr. 15: Congressional Power I: Abandoning the New Deal?

What is the conservative position on the constitutional structure of federalism? To what extent did the conservative justices consistently apply this position in U.S. v. Lopez (1995) and Gonzales v. Raich (2005)? How about Printz v. U.S. (1997)? In addition to the readings listed below, I also recommend U.S. v. Morrison (2000), in which SCOTUS struck down a provision of the 1994 Violence Against Women Act for exceeding the scope of federal power; the case originated with a sexual assault that took place at Virginia Tech.

Tues., Apr. 20: Congressional Power II: The Affordable Care Act (aka Obamacare)

Given the constitutional principles that we discussed last time, why did the conservative justices divide amongst themselves on the constitutionality of the Affordable Care Act (aka Obamacare)? What are the likely long-term implications of the Court’s holding in NFIB v. Sebelius (2012)?

Thurs., Apr. 22: The Conservative Court and the Democratic Process I

Our principal focus today will be Bush v. Gore (2000), in which the Supreme Court decided the outcome of the 2000 presidential election. We will also make reference to the unsuccessful efforts by Republican lawyers to persuade the Supreme Court to resolve the outcome of the 2020 presidential election.

Tues., Apr. 27: The Conservative Court and the Democratic Process II

Our principal focus today will be Shelby County v. Holder (2013). We will also make reference to several more recent conflicts regarding election law, paying particular attention to longstanding and ongoing efforts to persuade the federal courts, state legislatures, or Congress to do something about partisan gerrymandering. In addition to the required readings below, I recommend this podcast focused on gerrymandering litigation, as well as the Court’s decision in Rucho v. Common Cause (2019).

  • GGW, 787-793, 941-945

Thurs., Apr. 29: The Right to Life and the Right to Die

Our principal focus today is abortion rights during the Reagan-Bush era. How much did the Rehnquist and Roberts Courts cut back on Roe v. Wade? Why didn’t they go further? We’ll be talking mostly about abortion rights, but if time allows, we may touch on assisted-suicide as well; on the latter issue, the leading case is Washington v. Glucksberg (1997).

Tues., May 4: Free Speech in a Conservative Era I

As the Court moved rightward in the 1980s and 90s, would you expect its protection of outrageous, offensive, and hurtful speech to change? In which direction? The assigned pages from GGW include a Supreme Court decision about flag burning and a lower court decision about campus speech codes. The online cases are about student speech (Morse) and outrageous speech that intentionally inflicts emotional distress on others (Hustler Magazine and Phelps).

In addition to the required readings, I also recommend taking a look at Miller v. California (1973), Paris Adult Theater I v. Slaton (1973), FCC v. Pacifica Foundation (1978), and these excerpts from the 1986 Meese Commission Report on Pornography (all of which involve obscenity/pornography regulation); U.S. v. Stevens (2010) (animal cruelty); R.A.V. v. St. Paul (1992), Virginia v. Black (2003), and this podcast focused on hate speech; Holder v. Humanitarian Law Project (2010) and Andrew F. March, “A Dangerous Mind?” (April 22, 2012) (regarding speech allegedly supportive of terrorism), and Walker v. Sons of Confederate Veterans (2015) (Confederate flag).

Thurs., May 6: The LGBT Rights Movement and Constitutional Change

One of the most profound constitutional developments of the past couple decades is the sea change in the constitutional status of LGBT rights. Compare the Court’s approach to such rights in Bowers v. Hardwick (1986) and Lawrence v. Texas (2003). Or compare the text and tone of the 1996 Defense of Marriage Act (DOMA) with the Supreme Court’s holdings in U.S. v. Windsor (2013) and Obergefell v. Hodges (2015). Why did this change take place? How far is it likely to go?

Mon., May 10: Paper assignment #3B is due today.

Tues., May 11: Church and State in a Conservative Era

What is the conservative position on free exercise of religion? Has it shifted since the 1960s? Since the 1980s? Pay particular attention to Justice Scalia’s opinion in Employment Division v. Smith (1990) and to the more recent cases involving COVID-19 public health restrictions. In addition to the readings below, I recommend this 2016 article by Garrett Epps.

Thurs., May 13: Gun Rights

Our focus today will be the constitutional protection of the right to bear arms. If time allows, we may also talk more broadly about the Constitution in the Biden era, which is another way of saying that we’ll focus on some key constitutional conflicts that are currently in the news or likely to emerge in the coming months. Note that your active engagement self-assessments are due today.

Tuesday, May 18, 12:45-2:45pm: We will close the semester with a comprehensive final exam. The exam will be open book and will be delivered via Blackboard.