CONSTITUTIONAL LAW

(Aug. 4, 2015 draft)

SYLLABUS
Fall 2015
Professor: Susan Carle
Dates: Tues. & Thurs., 6:00-8:00 pm
Office: 408
Room TBA
Office Hours: TBA
depending on class availability
Phone: 202 274 4188 (w); 301 325
2650 (cell);
301 652 4628 (home)
Email: scarle@wcl.american.edu
Assistant: Ms. Karrma FreemanTerrell
Room: 349
Phone: 202 274 4068
Email: freemant@wcl.american.edu
Introduction
Welcome to the study of U.S. constitutional law. Our constitutional law
system establishes the structure of the U.S. government and allocation of
power among the branches of government and between the federal and
state levels of government. It also defines certain fundamental legal rights
and protections, usually as against government action. Your future career
depends on your understanding these foundational principles; in almost all
legal fields, constitutional law principles guide analysis and lurk in the
background.
Most importantly, constitutional law involves the separation of powers into
the legislative, executive, and judicial branches and the allocation of powers
to these branches. We will study these important principles in Unit One of
this course. Equally importantly, the federal Constitution defines our system
of federalism, which allocates powers among the national government, state
governments, and the people. We will study these topics in Unit Two. Last
but by no means least, the federal Constitution defines some of the core
rights of individuals (and sometimes others, such as corporations) in our
legal system. An introduction to these topics will be the focus of Unit Three.
We will focus there on the structure and methodology of rights analysis; the
limited space we have in a one semester course unfortunately will require us
to leave in-depth exploration of these many fascinating topics to our many
rich upper-level courses (which can be reviewed through
http://pathways.wcl.american.edu/).

Textbooks
Your casebook for this course is a specially designed product for this course
that melds several books you would otherwise have to buy separately. It
costs $165, which is far less than buying these several books separately or
the entire casebook by itself. You can either order the book from the
American University bookstore or directly from the publisher. Here is the
ordering info.
Susan Carle, Constitutional Law 4th Edition -- Custom Version
(Wolters Kluwer 2015)
CP: American Carle Con Law 5e
ISBN: 9781454872566
List price: $165
NB: You cannot buy this online or from a regular bookstore, and last
semesters edition will not work for this class because we are studying many
different and/or new cases. If you have any questions, feel free to email me
or my assistant (contact info. is on page 1).
Our initial readings are also loaded as a PDF in myWCL so you can start on
the reading before you get the physical book. It is important that you
purchase this particular custom-made book as it is what we will be referring
to throughout the semester.
An excellent optional supplemental treatise, by the same author is
Erwin Chemerinsky, Constitutional Law: Principles and Policies, 5th Edition
(Aspen Student Treatise), 5th Edition, 2013. ISBN 978-1-4548-4947-6
Copies of this treatise are available in the reserve room of the library. Using
the supplemental treatise in the library when needed could be a good way of
saving money, as could sharing the cost by purchasing a collective copy with
a group of other students.
Grading
From a law professors perspective, law school course grading is always a big
challenge. On the one hand, the professor wants to avoid assigning too
much busy work, as this takes away from students time to prepare the

reading material for class. On the other hand, some professors (including
yours truly) dislike having grades rest solely on one end-of-semester exam
performance. To balance these interests (something well be learning a lot
about this semester in the constitutional law context), I divide your grade
into three components. They are: (1) classroom participation, (2) several
short, low-key writing assignments spread over the course of the semester
(you can pick which ones), and (3) the final. The allocation of points will be
as follows:
Class participation = 20%
Writing assignments = 20%
Final = 60%
Class Participation
I find that law school classes work best when students come to class
prepared to discuss the material, and when there is a good deal of lively
discussion and interaction between teacher and students in which many
voices and perspectives participate. To encourage these conditions in class, I
will divide you into law firms of approximately five students each. You and
your law partners will be assigned to brief the cases assigned at regular
intervals during the semester, and may also receive additional instructions
as to how to prepare this material (such as to prepare one side of the
argument or the majority or dissenters opinions).
I also will take class attendance each day through a sign-in sheet. (It goes
without saying that it is a serious honor code violation to falsify class
presence.) To receive an excused absence you must notify me beforehand
unless this proves impossible in an emergency situation.
Provided that you attend class regularly and perform adequately in your law
firm work, you will receive full points for class participation. I value quality
over quantity, and you should not feel you must volunteer in every class. I
do appreciate thoughtful comments and questions as the course proceeds,
and I will encourage this kind of voluntary participation. But I am very aware
that students who speak less in class may be every bit as present as
students who tend to talk more; I value both styles of class participation. I
tend to call on students who look like they are willing to speak, especially if
they have not spoken recently, and I like to encourage new participators.
Once the ice is broken it is often easier to continue to volunteer to speak in
a conversation involving many participators and I want to encourage those of

you who are somewhat shy in this situation to work on the skill of chiming
in.
One final point about class participation: Constitutional law often raises
difficult, controversial issues. We have to tackle these head on. My policy is
that, in my classroom at least, no one owns a position they express.
Instead we must take on and experiment with all positions by
sympathetically exploring and seeking to understand them. I will purposely
ask you to express positions you dont personally agree with, and I will
greatly appreciate it if others besides me help articulate the less politically
correct viewpoints we will encounter. No one owns a monopoly on right
answers and I strive to establish a class atmosphere that values ideological
diversity. If you feel this is not occurring, I would appreciate you letting me
know, either directly or by bringing an anonymous complaint to my course
deans fellow.
In-Class Hypos
You will receive credit for handing in a total of four written analyses, of
approximately one page each, selecting from among the hypos we will
discuss in class periodically, at the end of each of our three main topic
units. You should finish drafting your analysis of these hypos. after we
have discussed them in class so that you can benefit from those discussions.
You have two classes after we have finished discussing the hypos for each
unit to get your write ups in to me. Reminders of these deadlines appear on
the syllabus. You must submit your write up to me in hard copy at the
beginning of class (not emailed please), and I will hand them back with my
hand written comments on them at the beginning of the next class. You are
responsible for keeping track of these copies over the semester and then
handing all four into me (with my comments and grades on them) at the end
of the semester, as a type of writing portfolio. I highly recommend that
you choose hypos to write up that you find difficult and confusing, as this will
most help you with your legal analysis and writing ability.
I will grade your short write-ups on a 1 to 5 scale as follows:
5 - superior
4- very good
3- adequate
2 - needs more work

1 - inadequate
The four assignments will add up a maximum of 20 points and you may
continue to rewrite them for a higher grade based on my comments.
Final
The final will be a four-hour, in-class, open book and open notes exam. It will
be scheduled to be taken collectively during exam period. It will consist
entirely of short answer and essay answers (the number of which will be
determined and announced before end of the semester). You will be
permitted to electronically search your notes while taking the exam but may
not cut and paste any pre-prepared material into your exam answer. You
may not use any kind of recording containing class-related information
during the exam (unless you have ADA accommodations). You may have any
written material you wish to have with you in the exam (but you should
expect to have little time to look through it). I encourage you to think of the
exam as a closed-book exam with the opportunity to quickly refresh your
memory in case of a nerves or a brain glitch.
I give this type of exam because (1) it is less painful than a take-home, and
(2) it enhances bar passage rates by acquainting students with the timed
exam format (as empirical studies have proved). You may not like it now but
you will be glad you experienced this exam format later.
A few days before the final I will offer an optional review session, powered
entirely by whatever questions you wish to bring to the session for group
discussion. After this group review I will not take individual substantive
questions. Before that, I will offer ample office hours. I also encourage you
to stop by during the semester with questions about the course or any other
matter. I enjoy getting to know you and you are never bothering me if you
stop by. You may sign up for appointments through MyWCL Instructor Office
Hours or schedule with me, or just drop by. A question asked in office hours
is always an indication to me of what the whole class could benefit from
discussing, so please keep your office visits coming. I will set office hours for
this class after weve had a discussion about what times work best for your
schedules and am also always happy to schedule appointments at other
times as well.

Reading Assignments

All assignments are to your custom casebook or to supplementary material

loaded on MyWCL. The twenty-eight entries roughly correspond to our
twenty-eight class periods, though we may of course get a bit behind and
then have to adjust the schedule as the semester progresses.

Before class starts: Read the Constitution, pp. xiiixxix

CHAPTER I: THE SEPARATION OF FEDERAL

POWERS
A. The Role of the Judiciary
1. Introduction (see reading above); The Authority for
Judicial Review
Reading: pp. 1 - 14 (10 and read ahead for next class)
Marbury v. Madison
Martin v. Hunters Lessee
Cohens v. Virginia
No law firm assignments
2. Intro. to Limits on Federal Judicial Power; the Method
of Constitutional Interpretation; Justiciability
Reading: pp. 14-62 (48)
District of Columbia v. Heller (LF 1, majority opinion; LF 2,
dissents)
Clapper v. Amnesty International (LF 3, maj. op.; LF 4,
dissent)
Obergefell v. Hodges (LFs 5 &6 maj.; LFs 7 & 8 dissents - all
focus on techniques of constitutional interpretation)

B. The Division of Power between the

Executive and Legislature
3. Separation of Powers and Presidential Authority
Reading: pp. 62-83 (21)
Youngstown Sheet & Tube Co. v. Sawyer (LF 9) (maj.; LF
10, Jackson concurrence; Douglas concurrence; LF 11,
Frankfurter concurrence; LF 12, dissents)
US v. Nixon (LF 13)
Clinton v. City of New York (LF 14)
4. Constitutional Issues in the Administrative State
Reading: pp. 84-119 (35)
INS v. Chadha (LF 15 & 16)
Morrison v. Olson (LF 17 & 18)
Meyers v. U.S. (LF 1 & 2)
Humphreys Executor v. US (LF 1 & 2)
Free Enterprise Fund v. Public Co. Accounting Oversight
Bd. (LF 3 & 4)
NLRB v. Noel Canning (LF 5 & 6)
5. Allocation of Power in Conducting Foreign Policy
Reading: pp. 119 - 144 (25)
US v. Curtiss-Wright Export Corp. (LF 7)
Dames & Moore v. Regan, Sec. of Treasury (LF 8)
War Powers Resolution (LF 9)
Zivotofsky v. Kerry (all LFs)

6. Presidential Power in a Post 9/11 World

Reading: pp. 144-76 (32 +?) - GUEST TEACHER
Hamdi v. Rumsfeld (LF 10, Hamdi; LF 11, U.S. govt)
Boumediene v. Bush (LF 12, petitioners; LF 13, govt)
Supplemental reading TBD (LF 14)
7. Synthesis; Review, Unit I, Separation of Powers, pp.
176-179
EXAMPLE 1-1-LFs 15, 16, 17
EXAMPLE 1-2- LFs 18, 1, 2
EXAMPLE 1-3-LFs 3, 4, 5
EXAMPLE 1- 4-LFs 6, 7, 8
EXAMPLE 1-5-LFs 9, 10, 11
EXAMPLE 1- 6 -LFs 12, 13, 14
EXAMPLE 1 -7-LFs 15, 16, 17
EXAMPLE 1-8- LFs 18, 1, 2
EXAMPLE 1-9- LFs 3, 4, 5
EXAMPLE 1-10-LFs 6, 7, 8
EXAMPLE 1-11-LFs 9, 10, 11
EXAMPLE 1-12-LFs 12, 13, 14
EXAMPLE 1-13- LFs 15, 16, 17
EXAMPLE 1-14-LFs 18, 1, 2
**NB. For submission of write-ups: due date is Class 11 **

CHAPTER II: DIVISION OF POWERS BETWEEN

STATE
AND NATIONAL GOVERNMENTS
A. Federal Authority and State Limitations on
it
8. The Scope of Congressional Authority I
Reading: pp. 181-218 (37)
McCulloch v. Maryland (all)
National Federation of Independent Business v.
Sebelius (LF 3, individual mandate; LF 4, Taxing Power;
LF 5, Medicaid funding- for each issue, know Courts
judgment and concurrences and dissents)
9. Congressional Power, the Commerce Clause, and the
10th Amendment (pre 1991)
Reading: 219-240 (21)
NLRB v. Jones & Laughlin Steel Corp. (LF 9, NLRB; LF 10,
Steel Co.)
US v. Darby (LF 11)
Wickard v. Filburn (LF 12, farmer (Filburn); LF 13,
Agriculture Sec. (Wickard))
Heart of Atlanta Motel v. US (LF 14)
Katzenbach v. McClung (LF 15)
Perez v. US (LF 16)
Garcia v. San Antonio Metropolitan Transit Authority (LF
17, maj. Opinion; LF 18, dissents)

10. Congressional Power and the 10th Amendment: 1991present

Reading: pp. 240-262 (22)
New York v. US (LF 1, maj. Op.; LF 2, concur./dissent)
Printz v. US (LF 3, maj.; LF 4, dissent)
Reno v. Condon (LF 5)
11. Congressional Power under the Reconstruction
Amendments
Reading: pp. 263-284 (21)
US v. Morrison (LF 6, Morrison (arguing VAWA
unconstitutional); LF 7, US)
Katzenbach v. Morgan & Morgan (LF 8, maj. Op.; LF 9,
dissent)
Shelby Co. v. Holder (LF 10)
12. Other Sources of Congressional Authority
Reading: pp. 284-301 (17)
a. The Necessary and Proper Clause
United States v. Comstock (LF 6, Comstock; LF 7, US)
b. The Taxing and Spending Power
United States v. Butler
Chas. C. Steward Mach. Co. v. Davis
Sabri v. US
South Dakota v. Dole

B. State Authority and Federal Limitations on

it
13. Preemption
Reading: pp. 301-326 (25)
Express:
Lorillard Tobacco Co. v. Reilly (LF 11 MA A.G.; LF 12,
Lorillard Tobacco)
Implied/Conflicts:
Florida Lime and Avocado Growers v. Paul (LF 13)
Implied/Fed. Objective:
Pacific Gas & Elec. v. State Energy Resources Conserv.
& Dev. Commn (LF 14, Pacific Gas and US; LF 15, State
Commn)
Implied/Occupies Field:
Arizona v. US (LFs 16, 17, 18)
14. The Dormant Commerce Clause
Reading: pp. 326HP Hood & Sons v. Du Mond (LF 1)
South Carolina State Highway Dept. v. Barnwell Bros.
(LF 2)
Southern Pacific Co. v. Arizona (LF 3)
Facially Discriminatory Laws:
City of Philadelphia v. New Jersey (LF 4)
Hughes v. Oklahoma (LF 5)

Facially Neutral Laws:

Hunt v. Washington State Apple Ad. Commn (LF 6)
Exxon Corp. v. Governor of Md. (LF 7)
State of Minnesota v. Clover Leaf Creamery Co. (LF 8)
Dean Milk Co. v. City of Madison, WI (LF 9)
Maine v. Taylor & US (LF 10)
15. Synthesis and Review, Unit II, Federalism, pp. 356-58
EXAMPLE 2-1- LFs 1, 2, 3, 4
EXAMPLE 2-2-LFs 5, 6, 7, 8
EXAMPLE 2-3-LFs 9, 10, 11, 12
EXAMPLE 2-4-LFs 13, 14, 15, 16
EXAMPLE 2-5-LFs 17, 18, 1, 2
EXAMPLE 2-6-LFs 3, 4, 5, 6
EXAMPLE 2-7-LFs 7, 8, 9, 10
PLUS HYPOS LOADED IN MYWCL (ONLINE)
**NB. For submission of write-ups: due date is Class 19 **

CHAPTER III: INDIVIDUAL RIGHTS UNDER THE

U.S. CONSTITUTION
A. The Structure of the Constitutions
Protection
of Civil Rights and Liberties

16. Application of the Bill of Rights to the States

Reading: pp. 359- 390 (31)
Barron v. Mayor & City Council of Baltimore (LF 5)
Slaughter-House Cases (LF 6, butchers; LF 7, maj. Op.;
LF 8, dissent)
Saenz v. Roe (LF 9, maj. Op.; LF 10, dissent)
Palko v. Connecticut (LF 18)
Adamson v. California (LF 1)
Duncan v. Louisiana (LF 11)
McDonald v. City of Chicago (LF 12, plaintiffs; LF 13,
City; LF 14, maj. Op.; LF 15, Stevens dissent; LF 16,
Scalia concur.; LF 17, Thomas concur.)
17. The State Action Requirement
Reading: pp. 391-421 (30)
The Civil Rights Cases (LF 18)
Public Functions Exception
Marsh v. Alabama (LF 1)
Jackson v. Metropolitan Edison (LF 2, maj. Op.; LF 3,
dissent)
Terry v. Adams (LF 4)
Evans v. Newton (LF 5)
Amal. Food Employees Local 590 v. Logan Valley Plaza
(LF 6)
Lloyd Corp. v. Tanner (LF 7)

Entanglement Exception
Shelley v. Kraemer (LF 8)
Edmonson v. Leesville Concrete Co. (LF 9)
Government Regulation
Burton v. Wilmington Parking Auth. (LF 10)
Moose Lodge No. 107 v. Irvis (LF 11, maj. Op.; LF 12,
dissent)
Norwood v. Harrison (LF 13)

B. The Equal Protection Clause

18. Equal Protection Methodology; Rational Basis Review
Reading: pp. 421- 443 (22)
Roemer v. Evans (LF 14)
US Dept of Ag. v. Moreno (LF 15)
City of Cleburne v. Cleburne Living Center (LF 16)
19. Race I (Historical Perspective)
Reading: pp. 443-464 (21)
Dred Scott v. Sandford (LF 17)
Korematsu v. US (LF 18)
Loving v. Virginia (LF 1)
Palmo

re v. Sidoti (LF 2)

Plessy v. Ferguson (LF 3)

20. Race II (Contemporary)
Reading: pp. 465-503 (38)

Brown v. Board of Education (LF 4)

Washington v. Davis (LF 5)
McCleskey v. Kemp (LF 6)
Grutter v. Bollinger (LF 7)
Gratz v. Bollinger (LF 8)
21.

Gender; Alienage
Reading: pp. 503 -538 (35)
Frontiero v. Richardson (LF 9)
Craig v. Boren (LF 10)
US v. Virginia (LF 11)
Mississippi v. Hogan (LF 12)
Michael M. v. Superior Court of Sonoma County (LF 13)
Rostker v. Goldberg (LF 14)
Plyer v. Doe; plus notes/short case excerpts on age, sex
orientation, disability and wealth) (LF 15)

C. Due Process
22. Due Process protection for Business Economic
Rights: the Rise and Fall of Lochnerism
Reading: pp. 538 -561 (23)
Lochner v. New York (LF 16)
Muller v. Oregon (LF 17)
Adkins v. Childrens Hospital (LF 18)
West Coast Hotel v. Parrish (LF 1)

US v. Carolene Products Co. (LF 2) - BE SURE TO READ

note 4, WHICH IS LABELED AS NOTE 137 IN OUR TEXT, P.
701
Williamson v. Lee Optical (LF 3)
23. Modern Substantive Due Process: Privacy I
Reading: pp. 561-606 (45) - you may choose your
topics for the privacy unit (classes 23 & 24); you must
choose at least TWO topics in which to be very well
versed. Some of you may want to delve deeply into all
four topics)
Family autonomy
Loving v. Va. (LF 4)
Moore v. City of East Cleveland (LF 5)
Meyer v. Nebraska (LF 6)
Reproductive Autonomy
Skinner v. Oklahoma (LF 7)
Griswold v. Connecticut (LF 8)
Roe v. Wade (LF 9)
Planned Parenthood v. Casey (LF 10)
24. Privacy II
Reading: pp. 606-654 (48) - see note for class 23
Government Regulation of Abortion
Gonzales v. Carhart (LF 11)
Maher v. Roe (LF 12)
Casey (again) (LF 13)

Bellotti v. Baird (LF 14)

Medical decisions
Cruzan v. Director, Missouri Dept. of Health (LF 15)
Washington v. Glucksberg (LF 16)
Vacco v. Quill (LF 17)
25 & 26. The Constitution and the Fundamental Right to
Vote
Reading: pp. 654 -690 (44) - plus new cases before
SCOTUS this term
Guest speaker
(we will cover this material in two classes)
Harper v. Va. State Bd. of Elections (LF 18)
Kramer v. Union Free School Dist. (LF 1)
Crawford v. Marion Co. Election Board (LF 2, maj. op.; LF
3, dissent)
Reynolds v. Sims (LF 4 & 5)
Wesberry v. Sanders (LF 6)
Shaw v. Reno (MyWCL supplement) (all)
Alabama Democratic Conference v. Alabama (MyWCL
supp.) (all)
Arizona State Legislature v. Arizona Independent
Redistricting Commission (all)
27. Procedural Due Process

Reading: pp. 691-746 (55) - NOTE: this is a lot of

reading but much will be review from civil procedure; skim
cases youve read before
Daniel v. Williams (LF 7)
County of Sacramento v. Lewis (LF 8)
DeShaney v. Winnebago Co. Dept. of Social Services (LF
9)
Town of Castle Rock v. Gonzales (LF 10)
Goldberg v. Kelly (LF 11)
Board of Regents v. Roth (LF 12)
Goss v. Lopez (LF 13)
Paul v. Davis (LF 14)
Sandin v. Conner (LF 15)
Mathews v. Eldridge (LF 16)
Dist. Attorneys office for the Third Judicial District v.
Osborne (LF 17)
28. Synthesis, and Review: Unit Three, Individual Rights,
pp. 746-48
Law firms may choose their hypos., but try to do at least three
raising different types of issues.
EXAMPLE 3-1
EXAMPLE 3-2
EXAMPLE 3-3
EXAMPLE 3-4
EXAMPLE 3-5

EXAMPLE 3-6
EXAMPLE 3-7
EXAMPLE 3-8
EXAMPLE 3-9
PLUS HYPOS LOADED IN MYWCL (ONLINE)
**NB. For submission of write-ups: due date is Dec. 7 for
all Unit 3 hypos and all revised hypos from earlier units **

OPTIONAL REVIEW SESSION PRIOR TO FINAL, DATE AND

TIME TBD