Constitutional Law II (Spring 2026)

Class Instructors
ProfessorTeaching Assistant
Tom KeckHannah Radner
tmkeck[at]syr.eduhlradner[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 Th 11-12 and Fr 2-3 in Eggers 313, with a Zoom option. Teaching assistant Hannah Radner will hold office hours Tu/Th 1-2pm in Eggers Cafe or sometimes by Zoom. 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.

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 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 Instant 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.”

To find the book in Blackboard, navigate to our course, then under Books & Tools, click View course & institution tools, then Orange Instant Access. This resource makes ebooks available directly through Blackboard and bills the cost to your bursar account. You can opt out of this program before February 2 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 Instant 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:

Course Expectations

Grades will be based on a paper on the Warren Court, which will be written in multiple parts, some in class and some at home; a paper on the Roberts Court, which will be written in similar fashion; an in-class final exam; and an assessment of your active engagement with the course material.

The papers

The papers will each count for 30% of your final grade, distributed across multiple components. Further details are available here. These multi-stage assignments will be easier to complete if you stay on schedule.

As with the paper assignments in Con Law I, the goal of these papers is to demonstrate your knowledge of, and thoughtful engagement with, our key course texts. The papers require no additional or outside reading, and I discourage you from doing any.

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 and discussed in class. 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.

All take-home papers should be submitted through Blackboard, under the Assignments tab.

Final exam

At the end of the semester, we will have a comprehensive final exam, which will count for 25% of your final grade. I will provide more details as the semester proceeds.

Active engagement

The remaining 15% 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 almost thirty 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 will 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 should be turned off and put away promptly at 9:30 a.m. and should 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. I am happy to discuss accommodations with any students for whom this rule will present a barrier to their learning.

Grading: 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 papers: 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. Among other things, it governs citations and use of sources and mandates honesty 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.

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 Claude, ChatGPT, or other large-language models (LLMs) or 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 texts; 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.) Note that the detailed description of the Warren Court paper assignment linked above requires all students to visit the instructor or TA at least once early in the semester. 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 we 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.

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. 13: 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. 15: 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 Steel Seizure case.pdf (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. 20: 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. 22: 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). 

Tues., Jan. 27: 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., Jan. 29: 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. 3: 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. I encourage everyone to complete paper assignment 1.A, which requires a visit to office hours, as early as possible.

Thurs., Feb. 5: 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?

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

Tues., Feb. 10: 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

Thurs., Feb. 12: Egalitarianism & Its Critics

San Antonio v. Rodriguez (1973), Richardson v. Ramirez (1974), and Buckley v. Valeo (1976) are about three different legal/political issues. What do the three decisions have in common? We will devote part of today’s class to paper assignment 1.B, which will be written in class, closed book. Note also that component A, which requires a visit to office hours, is due tomorrow.

  • GGW vol. II, 518-530

Tues., Feb. 17: 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. Paper assignment 1.C is due by midnight tonight.

  • 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. 19: 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.

Tues., Feb. 24: 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. Paper assignment 1.D is due by midnight tonight.

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

Thurs., Feb. 26: Topic TBD

Tues., Mar. 3: Civil Rights in a Conservative Era II

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?

Thurs., Mar. 5: Executive Power I: The Nixon Era

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

Tue. & Thur., Mar. 10 & 12: Spring break. No class.

Tues., Mar. 17: Executive Power II: The Reagan/Bush Era

We continue our focus on executive power today, emphasizing some Reagan-era conflicts over the administrative state (e.g., the power of federal agencies to develop rules governing immigration, public health, or the environment) and some George W. Bush-era conflicts regarding national security (in the context of the post-9/11 war on terror). On the national security front, in addition to the required readings below, I recommend Hamdan v. Rumsfeld (2006), Harold Hongju Koh’s “The Obama Administration and International Law,” Carol Rosenberg’s “They Won Guantanamo’s Supreme Court Cases. Where Are They Now?” (2023) and Jack Goldsmith’s The Terror Presidency. In both contexts, pay particular attention to constitutional arguments regarding “unitary executive” theory.

  • GGW vol. I, 548-562, 623-640 (posted to Blackboard)
  • GGW vol. II, 675-680, 752-761

Thurs., Mar. 19: Executive Power III: The Trump Era

The Trump era has witnessed almost constant conflicts regarding the limits on executive power. The Reagan-era decision in INS v. Chadha (1983) has played a key role in a number of these conflicts; see if you can figure out why. Likewise for Scalia’s dissent in Morrison v. Olson (1988). 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. In the environmental context, note Loper Bright v. Raimondo (2024), in which the Court overruled Chevron v. NRDC (1984).

Tues., Mar. 24: 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.

Thurs., 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 whether to uphold the key provision of the Affordable Care Act (aka Obamacare)? What are the likely long-term implications of the Court’s holding in NFIB v. Sebelius (2012)?

Tues., Mar. 31: The Conservative Court and the Democratic Process I

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.

Thurs., Apr. 2: The Conservative Court and the Democratic Process II

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 urged to re-interpret the Elections Clause to limit the power of state courts to supervise the democratic process. I also recommend skimming some case documents in Watson v. Republican National Committee (pending case regarding state rules for mail ballots in federal elections).

Tues., Apr. 7: 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. Additional recent cases of interest include Mahmoud v. Taylor (2025) (re LGBT inclusive books in schools) and Chiles v. Salazar (pending case regarding a state ban on LGBT conversion therapy)

Thurs., Apr. 9: 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? Note also Washington v. Glucksberg (1997), which was about assisted suicide but has repeatedly come up in both LGBT and reproductive rights contexts.

Tues., Apr. 14: 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. 16: 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.

Tue., Apr. 21: Gun Rights, Birthright Citizenship, and the Fourteenth Amendment

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? To what extent should we expect the original meaning of the Fourteenth Amendment to determine the Court’s decision in the pending birthright citizenship case? In addition to the cases below, I recommend U.S. v. Rahimi (2024) and the More Perfect episode called “The Gun Show.”

Thur., Apr. 23: Trump & the Constitution

To what extent and in what ways does President Trump represent a threat to the constitutional order? To the extent that he does represent such a threat, why hasn’t Madison’s famous system of checks and balances done a better job of constraining Trump’s various crimes against the republic. Note that your active engagement self-assessments are due on Blackboard by midnight tonight.

Tue., May 5, 7:30-9:30pm: Final Exam

Tonight, we’ll have a comprehensive, in-class final exam. I’ll provide more details as the date approaches.