Constitutional Law II (PSC 325) (Spring 2024)

Class Instructors
ProfessorTeaching Assistant
Tom KeckSam Call
tmkeck[at]syr.edusrcall[at]syr.edu
(315) 443-5862

Day/Time/Location

Class meets T/Th 9:30-10:50 in Hall of Languages, room 202.

Professor Keck will hold office hours M 2-3pm and W 1-2pm in Eggers 313, with a Zoom option. TA Sam Call will hold office hours Th 12-2pm in Eggers 024, with a Zoom option. Zoom links are available on Blackboard, under the Content tab.

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

As of now, our class is scheduled to meet fully in person. If public health conditions necessitate, we may switch to online or hybrid models as the semester proceeds. If/when we do so, our online platform will be Zoom. Zoom will also be our platform for online office hours. 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 online class sessions (if necessary) and office hours. Zoom can be run directly from a web browser, but we may use some features (such as breakout groups) that work only if Zoom is installed on your device. Zoom links for office hours (and class sessions, if necessary) will be available on 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 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 examine a wide range of legal and political conflicts–involving the legitimate scope of presidential authority during wartime, the right to bear arms, voting rights, race-conscious affirmative action policies, reproductive rights, and more. 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.

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. (I recognize that not everyone in the class is a citizen of the United States, but most of us are or will be citizens of a democratic or democratizing country somewhere.) 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.

Much of what we learn will fall in the following three categories:

1) Enhanced understanding of the constitutional text. (The words of the text matter, as does their interpretation by courts.)
2) Enhanced understanding of the Constitution’s impact on real people. (For constitutional rights to be realized in practice, they have to be claimed (i.e., demanded) by real people.)
3) Enhanced understanding of the political institutions necessary to secure the Constitution’s promise. (For constitutional rights to be realized in practice, they also have to be implemented and enforced by a range of political institutions, not just courts.)

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.

Course Readings

Most of the readings for the course are from the following book, which will be available on Blackboard via Orange Inclusive Access:

  • Gillman, Graber, Whittington, American Constitutionalism, vol. II: Rights and Liberties, 3rd ed. ISBN: 9780197527641 (paperback); 9780197527702 (epub). In the course schedule below, I will refer to this one as “GGW vol. II.”

Orange Inclusive Access makes ebooks available directly through Blackboard and bills the cost to your bursar account. You can opt out of this program at the beginning of the semester if you prefer to obtain the book a different way, but if you do so, please make sure to get the volume and edition that match the description above.

Some of our readings will be from the following book, which was our primary text in Con Law I last Fall:

  • Gillman, Graber, Whittington, American Constitutionalism, vol. I: Structures of Government, 3rd ed. ISBN: 9780197527634 (paperback); 9780197527696 (epub). I will refer to this book as “GGW vol. I.”

If you took Con Law I last Fall, you should still have access to GGW vol. I via Orange Inclusive Access. (Default ebook availability under OIA is 6 months, but I requested 12 months when setting it up last Fall.) But since some of you may not have taken Con Law I last Fall, I will also scan and post these passages to Blackboard. Both books will also be on 2-hour physical reserve at Bird Library.

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-page paper (which will also be submitted in two parts), a final exam, a “Con Law in the Wild” assignment, 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 materials listed 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-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 or all of the due dates may be on non-class days (i.e., days other than Tue. or Thur.). All papers should be submitted through Blackboard, under the Assignments tab.

ASSIGNMENT #1: 3-PAGE CASE MEMO (10%)

Each student must submit a 3-page memo analyzing one case that is on the Supreme Court’s current docket. (Click that link to see a full list.) You should select a case that the Court has agreed to hear, but that has not yet been decided. (If the Court issues a decision while you are working on the paper, that’s okay.) You should then draft a memo as if you were a law clerk for one of the current justices, and you should specify which justice you’re clerking for. (You can do this in memo format; i.e., “To: Justice Amy Coney Barrett,” “From: Your name,” etc.) The memo should be approximately three pages, typed and double-spaced. It should provide the key information necessary for your justice to cast an informed vote in the case. At a minimum, this should include a brief description of the facts of the case, a summary of the key arguments advanced by petitioner and respondent, and a recommendation as to which party should win and why. If there are arguments contained in one or more amicus curiae briefs that seem particularly notable, feel free to cover those as well. In support of your recommendation, be sure to note any relevant provisions of the constitutional text and be sure to discuss the key relevant precedents. If the Court has decided similar cases in ways that support your recommendation, make clear how they apply to this case. If the Court has decided similar cases in ways that cut against your recommendation, make clear how those precedents can be distinguished from the case at hand.

ASSIGNMENT #2: 5-PAGE PAPER, IN 2 PARTS (20% TOTAL)

In a paper of approximately five pages (typed and double-spaced), identify, explain, and evaluate one or more key ways in which the Constitution (or understandings of the Constitution) changed during the Warren Court era. (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. What happened? Why did those developments occur? And did they have a positive or negative impact on U.S. constitutional democracy?

Be sure to provide specific examples in support of your argument–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-PAGE PAPER, IN 2 PARTS (30% TOTAL)

In a paper of approximately eight pages (typed and double-spaced), identify, explain, and evaluate 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 had a positive or negative impact on U.S. constitutional democracy.

This assignment is large and challenging, and intentionally so. As such, I encourage you to begin thinking about it 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 textbook, and perhaps many more. I plan to nominate the best paper completed for this assignment for a political science department 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 of interest and begin to articulate an argument about why these developments occurred and/or what impacts they had on our constitutional democracy. Assignment #3B is the complete 8-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.

“Con Law in the Wild” assignment (5% of your grade)

Anytime before the last day of February, each student must complete a “Con Law in the Wild” assignment as follows. Identify at least one circumstance outside of class in which the content of our course is relevant. The best examples are those that involve actual human interaction in daily life (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 on-campus or 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. Again, the deadline is the end of February.

Final exam (20% 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. TL;dr: 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, you are missing an important opportunity to talk with the rest of us about the course material. Even when I am lecturing, you will have opportunities to answer my questions and to ask questions of your own. Even a quick question to me on the way out of the classroom can often be a spark for enhanced understanding.

Because the lectures are an important component of our course content, I will sometimes make available audio and/or video recordings of them for those who miss class (or who want to review the material a second time). When you’re watching or listening to a recording, you will have the advantage of the pause and rewind buttons, but you won’t have the opportunity to interact. Hence, the recordings don’t help as much for advancing your understanding, and they don’t help at all with demonstrating your engagement. As such, if you miss an occasional class for good reason, the recorded lectures will help you keep up with what you’ve missed. But if this becomes a regular habit, your active engagement grade (and 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 requires diligent preparation. Nobody is perfect, but if you regularly complete the assigned readings prior to the relevant class session, your comprehension of the lectures will be enhanced, and 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 preparation and engagement with the course material.

Outside of class, I recommend verbally discussing the course material as often as possible, with as many different people as possible. Obviously, you can discuss the material with the professor or TA; we are best situated to answer your questions, and doing so also demonstrates your engagement. But I also recommend discussing it with friends and family as often as they will tolerate; doing so will enhance your own understanding, guaranteed. In other words, you can learn some things by reading the textbook silently in the library, but you will learn more things by reading the textbook and then telling your roommate about what you read. Guaranteed.

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 it was excused, did you notify Prof. Keck? When you missed class, what steps did you take to learn the material that you missed?
  • How often did you participate in class discussions? Is there a specific class session or two where you remember contributing? What were those conversations about? 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 helpful were these visits? In what ways?
  • How often did you discuss the course material with friends or family outside of class? What did you talk about, and how did others respond?

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

Course Policies

Attendance and course readings: As noted above, excelling 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 sometimes be able to access a recording of that lecture on Blackboard. 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 will be able to see and hear the lecture more reliably, and ask questions when something isn’t clear. 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).

I may spot check attendance on occasion (e.g., by collecting in-class writing), but the primary responsibility for tracking attendance is yours. If you skipped over the instructions for your active engagement self-assessment above, note that they require you to keep track of the dates and reasons of your own absences.

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.

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 or here for summaries of some of this research. If it becomes necessary for us to hold 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: Some 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. When you do so, I will re-grade the paper 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: Syracuse University’s Academic Integrity Policy reflects the high value that we, as a university community, place on honesty in academic work. The policy holds students accountable for the integrity of all work they submit and for upholding course-specific, as well as university-wide, academic integrity expectations. The policy governs citation and use of sources, the integrity of work submitted in exams and assignments, and truthfulness in all academic matters, including course attendance and participation. The policy also prohibits students from: 1) submitting the same work in more than one class without receiving advance written authorization from both instructors and, 2) using websites that charge fees or require uploading of course materials to obtain exam solutions or assignments completed by others and present the work as their own. Upholding Academic Integrity includes abiding by instructors’ individual course expectations, which may include the protection of their intellectual property. Students should not upload, distribute, or otherwise share instructors’ course materials without permission. Students found in violation of the policy are subject to grade sanctions determined by the course instructor and non-grade sanctions determined by the School or College where the course is offered, as described in the Violation and Sanction Classification Rubric. Students are required to read an online summary of the University’s academic integrity expectations and provide an electronic signature agreeing to abide by them twice a year during pre-term check-in on MySlice.

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. In this class, an established instance of plagiarism or other violations of the academic integrity policy may result in grade sanctions up to and including a failing grade for the course.

Students may not use ChatGPT or other artificial intelligence (AI) tools to complete assignments in this course without full disclosure to the professor. The goals of the writing assignments in this course are a) to enhance your learning by having you critically engage with difficult constitutional debates; and b) to assess your ability to do so effectively. Neither of those goals is furthered when you submit text that was written by a bot.

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 and AI-generated writing. You should be aware that all papers you submit for this class will become part of the Turnitin.com reference database for the purpose of detecting future 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 accommodations: If you believe that you need accommodations for a disability, please contact the Center for Disability Resources (CDR), 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.

Office hours and email communication: The scheduled office hours are listed at the top of this syllabus. Some of them will be conducted by the instructor, some by the TA. Some will be in person, some on Zoom. (Zoom links available on Blackboard.) As noted in the description of the “Con Law in the wild” assignment above, all students are required to visit the instructor or TA in office hours at least once by the end of February. We hope you will come more often, but you have to come at least once.

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-all. 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. Further details are available from the Center for Learning and Student Success.

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 (https://ese.syr.edu/bewell/) and seek out support for mental health concerns as needed. Counseling services are available 24/7, 365 days, at 315-443-8000. I encourage you to explore the resources available through the Wellness Leadership Institute, https://ese.syr.edu/bewell/wellness-leadership-institute/

Course Schedule

All required readings for the course are bulleted below. Most of the readings are from the Gillman, Graber, Whittington books, referred to in the schedule as “GGW vol. I” and “GGW vol. II.” Other readings are generally available online, 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., Jan. 16: Introduction to the Course

No required reading for today, but if you did not take Con Law I last Fall, I recommend reviewing the syllabus for that course this week. I also recommend this article by Orin S. Kerr on “How to Read a Legal Opinion”; it’s written for first-year law students, but I think it will be helpful for us as well.

Thurs., Jan. 18: 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 vol. I, 458-466 (most of you should have access to this book via PSC 324 (Fall 2023) in Blackboard) OR GGW 2015 (an earlier edition), pp. 534-543 (which are scanned & posted to Blackboard)
  • GGW vol. II, 457-460

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?

Tues., Jan. 23: 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.

  • GGW vol. I, 406-410, 438-446 (or GGW 2017 vol. I, 423-427, 454-459, which are scanned & posted to Blackboard)
  • GGW vol. II, 461-466
  • Loving v. Virginia (1967) (online)

Thurs., Jan. 25: 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). 

Monday, Jan. 29: Assignment #1 is due today. The assignment details are in the Course Expectations section above.

Tues., Jan. 30: 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?

Thurs., Feb. 1: 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 readings below include 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).

Tues., Feb. 6: 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.

Thurs., Feb. 8: Trump v. Anderson

We’re going to depart from our chronological schedule of topics today, to focus on a current case for which the Court has scheduled arguments for today.

Mon., Feb. 12: Assignment #2A (the one-page partial draft) is due today.

Tues., Feb. 13: The Women’s Movement and the Constitution

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? If time permits, I may also say a word about San Antonio v. Rodriguez (1973), which is available in GGW vol. II, pp. 527-530. The Rodriguez case was about economic justice rather than gender equality (in particular, public school funding equity), but it was decided the same year as Frontiero and is a useful window onto the Burger Court’s understanding of the various tiers of equal protection scrutiny.

  • GGW vol. II, 544-550, 738-742
  • Radiolab, More Perfect podcast, “Sex Appeal” (online audio)

Thurs., Feb. 15: Roe v. Wade (1973)

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), Roe v. Wade (1973), and Planned Parenthood v. Casey (1992), did anything in the justices’ opinions alter your thinking? What was it?

  • GGW vol. II, 412-416, 506-513, 598-609

Tues., Feb. 20: 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 vol. II, 382-387, 473-487

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’s political institutions shifted in a Republican direction, 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., Feb. 22: Partisan Realignment and Constitutional Change: Nixon, Reagan, Bush I & II, Trump, and the Courts

Our principal focus today will be the impact of Republican presidents on the Supreme Court, beginning with Nixon. If time allows, we’ll take a quick look at the Court’s shifting approach to capital punishment in the early 1970s. I recommend completing the readings in the order listed below.

Mon., Feb. 26: Assignment #2B (the 5-page paper on the Warren Court) is due today.

Tues., Feb. 27: 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 Marshall’s opinions in Bakke.

  • GGW vol. II, 497-499, 530-542, 641-646

Thurs., Feb. 29: Civil Rights in a Conservative Era II

Reminder: Your “Con Law in the Wild” assignment is due today.

Continuing with our discussion of affirmative action, is there anything in Gratz v. Bollinger (2003), Grutter v. Bollinger (2003), or Parents Involved v. Seattle School District (2007) that altered your thinking? How about Students for Fair Admissions v. Harvard?

Tues., Mar. 5:  Executive Power I: The Age of Watergate

The Watergate scandal was a long time ago. To what extent, and in what ways, is it still relevant today?

Thurs., Mar. 7: Executive Power II: 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, Trump, and Biden eras as well. In addition to the required readings below, I also recommend Hamdan v. Rumsfeld (2006), Harold Hongju Koh’s “The Obama Administration and International Law,” and Jack Goldsmith’s The Terror Presidency.

Tue. & Thur., Mar. 12 &14: Spring break. No class.

Tues., Mar. 19: Executive Power III: The Administrative State

From the Reagan administration to the present, there have been 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 Chevron v. NRDC (1984), Whitman v. American Trucking Association (2001), Massachusetts v. EPA (2007), and West Virginia v. EPA (2022). For today, however, we’ll focus mostly on immigration and public health. On immigration, note President 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. On public health, note the Supreme Court’s 2022 decision invalidating the Biden administration’s requirement that large private employers either mandate COVID vaccines for their employees or implement a masking & testing protocol.

Thurs., Mar. 21: 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), U.S. v. Morrison (2000), and Gonzales v. Raich (2005)? How about Printz v. U.S. (1997)? Note that the Morrison case originated with a sexual assault that took place at Virginia Tech.

Tues., Mar. 26: 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)? Note: Paper assignment #3A is due by midnight tonight.

Thurs., Mar. 28: 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, and Moore v. Harper, in which the Court was recently urged to re-interpret the Elections Clause in ways that could alter the 2024 election.

Tues., Apr. 2: 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 vol. II, 620-625, 716-720, 834-843

Thurs., Apr. 4: Reproductive Rights in a Conservative Era

Our principal focus today is abortion rights during the Trump era. Why did the Court overturn Roe v. Wade in 2022? Why didn’t it do so sooner? If you have the time and the inclination, I recommend reviewing Planned Parenthood v. Casey (1992) (which we discussed several weeks ago), Gonzales v. Carhart (2007) (available online), and Whole Women’s Health v. Hellerstedt (2016) (available in GGW vol. II, pp. 806-812). But our principal focus will be the 2022 Dobbs decision, linked below. Note that the excerpted opinion is 23 pages. I also recommend this New York Times account of the Court’s internal deliberations in Dobbs.

Tues., Apr. 9: Free Speech in a Conservative Era

As the Court moved rightward in the 1980s and 90s, would you expect its protection of outrageous, offensive, and harmful speech to change? In which direction?

We could spend a whole semester talking about free speech law (and indeed, I have another course that does so). But for today, I’ve selected a handful of cases that show some of the key lines of conflict on the current Court. If you’re interested in learning more, I recommend reading some of the key case documents in the multiple First Amendment cases that the Court has on its 2023-24 docket.

Thurs., Apr. 11: 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). (On the Lawrence case, I recommend the More Perfect podcast episode called “The Imperfect Plaintiffs”.) 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? Is it likely to continue, or has it run its course and started to backtrack?

Tues., Apr. 16: 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, the Seventh Circuit’s opinion in Illinois Republican Party v. Pritzker (7th Cir. 2020), and SCOTUS’s 2022 opinion in Kennedy v. Bremerton School District (2022).

Thurs., Apr. 18: Gun Rights

In figuring out the appropriate constitutional limits on gun control, to what extent has the contemporary Court relied on a persuasive and compelling account of the original meaning of the Second Amendment? How about the Fourteenth Amendment? In addition to the cases below, I recommend the More Perfect episode called “The Gun Show.”

Mon., Apr. 22: Paper assignment #3B is due today.

Tues., Apr. 23: Exam Review

No new reading today, but I recommend that everyone spend some time reviewing course material before today’s class and come prepared with questions that may be relevant for the final exam.

Thur., Apr. 25: Final Exam

Today we’ll have a comprehensive, in-class final exam, at our regular class time and place. I’ll provide more details as the date approaches. Note also that your active engagement self-assessments are due on Blackboard by midnight tonight.

Tue., May 7, 7:30pm: Make-Up Final Exam

If anyone missed the exam on April 25 for some reasonable and legitimate reason, this day & time will be an opportunity for a make-up exam.