My Constitutional Law Syllabus, and Approach to Teaching

December 6th, 2013

I just finished writing up my constitutional law syllabus. It is not finalized, and I welcome comments from anyone. We only have a four-credit conlaw survey that has to cover everything, so I had to make very tight coverage decisions. I made the choice for breadth rather than depth. This was a tough decision I made based on a host of factors, including the limited time I have, and what a majority of students at my school are interested in. I would rather they be familiar with a host of different topics they may confront in their careers, rather than delving very deep into brush. I will supplement these short readings by injecting relevant theoretical points, framed in terms of litigation strategies. Another professor told me a trick to teaching theory and policy arguments–call them “litigation tools.” I tried this, and it worked like a charm. Referring to the Coase Theorem as a “bargaining tool” was a game changer. Much fewer glazed eyes. So much of my instruction will be framed in terms of civil rights litigation that was behind the case, and how the lawyers framed the argument.

I am using “The Constitution of the United States” by Paulsen, Calabresi, McConnell, and Bray. I really like how the book has a strong focus on the text, and history of the Constitution. I also like how it summarizes broad sweeps in doctrine without spending too many pages. For example, rather than assigning Lopez, Morrison, and Raich as full cases, the book gives Lopez, and summarizes Morrison and Raich. You lose a lot by not having the students read each case, but in a four-credit class, that allows me to teach a big arc of the Rehnquist Federalism revolution in about 20 pages. I kept the readings to about 30-40 pages per class, with on average 3 or 4 big cases. I had to make serious coverage cuts, but I think I got a broad range of issues. Plus, from a practical perspective, it has a wonderful teacher’s manual, which this first time professor will lean on heavily.

A close runner-up was “Constitutional Law“by Barnett and Katz. I loved how they arranged the cases by chronology (focusing on the work of each court). Teaching cases by epoch is very powerful, and how I personally study the law. But, with a four-credit course, I found that I had to jump around, and cut so much out, that the historical narratives didn’t carry through. I would consider this book if I had more time. I also loved “The Supreme Court Sourcebook” by Seamon, Siegel, Thai, and Watts, but it just didn’t fit with the class I had to teach. This is awesome for any Supreme Court seminar.

I will make an aside. I found it fascinating that a number of textbooks I reviewed did not actually have the Constitution inside. Some attached it as appendix at the end (an afterthought, I suppose). The Calabresi and Barnett books had them right up front. In my first class, I assign the Declaration of Independence, the Articles of Confederation, and the Constitution. I added a note “Read these documents in their entirety. They’re not long. And no one should graduate law school without reading them at least once.”

I thought about including this quotation from Justice Harlan, but I resisted the urge:

I have often been astounded to meet with lawyers who have actually never read the Constitution of the United States, although it can be read within the time that is wasted at a street corner some afternoon discussing the last game of baseball or the last prize fight. They may have examined particular clauses, but have never read the entire instrument so as to comprehend in a general way the system of govern- ment ordained by it . . . .

Now, I beg you that this may not be said of any member of this law class that he allow this week to pass without read- ing the Constitution. Some knowledge of the principles un- derlying the government under which we live ought to be possessed by every person who owes duties to that govern- ment, or upon whom its laws operate, or who depends upon it for protection of his life, liberty, and property. Freedom and free institutions cannot long be entertained by a people who do not understand the nature of the government under which they live.

One of the tougher decisions was whether to teach the First Amendment. There is a separate First Amendment class, but very few people take it (maybe 20 each year). So, I had to assume that this would be the students’s only exposure to freedom of speech and freedom of religion. At the end of the semester I include two classes on the First Amendment speech clauses, one class on the establishment clause, and half a class on the Free Exercise clause. I finish with half a class on Heller (not nearly enough to do it justice). I could teach an entire seminar on each topic, but I don’t have that advantage.

I also decided to teach a bit about the 11th Amendments. Students are not required to take federal courts, and this is not covered in CivPro. So I added units on the 11th Amendment and sovereign immunity, when talking about Congress’s Section 5 Powers (Boerne v. City of Flores doesn’t really make sense unless you understand the 11th Amendment). Many students who go on to do civil rights work will invariably sue the government, and should know something about sovereign immunity.

Pedagogically, I am very strict in my class in one respect–every class, we will cover what I say we will cover. After teaching property now for 6 semesters, I have never once fallen behind. I do this for a host of reasons. First, it is fair to the students. It drove me nuts when a professor would say, “read thirty pages ahead.” That is unfair to students who try to budget their time (especially those who work). Everyone knows where we start, and where we finish each day. Plus, when you start a case on a Wednesday, and continue it on a Monday, absolutely no one remembers where they finished. The mind doesn’t work like it.  So much time is wasted rehashing what was already covered.

Further, psychologically, this is important for learning. The mind digests information in concrete blocks. Each two-hour class should be its own distinct lesson. For example, in a single class I will teach Dred Scott and Plessy. That allows me to trace the arc between the two of citizenship and equality, while it is fresh in their mind. Or, I will teach Wickard to Hearts of Atlanta to Lopez in a single class, to explore the arc of commerce clause jurisrprudence.

The downside is that discussion time is limited. I have to be extremely diligent with my clock-management, and probably shut down discussions that should go on. I always try to wrap up about a minute or two before the bell, and wrap things up quickly (no one pays attention in the last minute anyway as papers shuffle and people pack up). This lack of talk-time concerns me more for conlaw than it does for Property. I will report back in May with an analysis of how it turned out.

To compensate for the short amount of time, I plan on doing more lecturing for the facts, and doctrine of the case, and leave discussion time for the policy angle. This will allow students to shirk on the readings, though as I’ve explained before, I don’t worry as much as others do about students who fail to do the reading. On my curve, 20% of the class has to get below a B-, and my preference is for those students to be the ones who don’t care enough to read. Those who participate will be richly rewarded with grades, and knowledge.

Here is the full syllabus in case you are interested. And if anyone is in Houston, you are welcome to audit any of my classes. Also, I will record all of my classes on YouTube, so you can watch them later.

Class 1 – 1/5/14

Our Founding Documents

  • The Declaration of Independence
  • The Articles of Confederation (pp. 1633-1638)
  • The Constitution of the United States (pp. 1-15).
  • The Adoption of the Constitution (19-27).
  • Six broad themes of the Constitution (35-39).
  • Map of the Constitution (39-42).

Note: Read these documents in their entirety. They’re not long. And no one should graduate law school without reading them at least once.

Class 2 – 1/20/14

Why is the Constitution Supreme?

  • Constitutional Supremacy and Interpretation (123-124).
  • Federalist No. 51 (128-129).
  • Federalist No. 78 (133-138).
  • Background of Marbury v. Madison and Judicial Review (140-143).
  • Marbury v. Madison (143-155).
  • Stuart v. Laird (155-156).
  • Judicial Supremacy and letters from Jefferson and Madison (159-161)

Class 3 – 1/22/14

The Separation of Powers

  • Separation of Powers (173-175).
  • Youngstown Sheet & Tube (175-190).
  • The Powers of Congress – Article I (190-192).
  • Enumerated Powers (192-193).
  • M’Culloch v. Maryland (193-209) 

Class 4 – 1/27/14

The Legislative Powers

  • Bicameralism & Presentment (260-261).
  • INS v. Chadha (261-272).
  • Clinton v. City of New York (272-281).
  • Read Article I, Section 8 of the Constitution (3-4).
  • Enumerated Powers in Article I, Section 8 (281-283).
  • Bills of Attainder (283-284).
  • Note 5 – Nixon v. GSA (293-294).
  • Ex Post Facto Clause (294-295).
  • Contracts Clause (295).

Class 5 – 1/29/14

The Executive Powers I – Appointments Power

  • The Executive Power – Article II (296-297).
  • Notes (306-308).
  • The Appointment Power (334-335).
  • The “Removal” Power (348-351).
  • Myers v. United States (351-366).
  • Humphrey’s Executor v. United States (366-370).
  • Morrison v. Olson – Removal (370-382).
  • National Labor Relations Board v. Canning (material to be posted).
  • The “Faithfully Executed” Clause (316-318).
  • The “Take Care” clause (330-331).
  • Impeachment (475).

Class 6 – 2/3/14

The Executive Powers II- Foreign Affairs and War

  • Inherent Executive Powers (308).
  • Executive Powers for Foreign Affairs (383-385).
  • Curtiss-Wright (385-390).
  • Dames & Moore v. Regan (392-399).
  • The War Power (411-413). Practice and Precedent (415-416).
  • Prisoners of War and Civilian Detention (439-440).
  • Ex Parte Milligan (440-444).

Class 7 – 2/5/14 – CLASS CANCELLED

Class 8 – 2/10/14

The Executive Powers III – Detention

  • Ex Parte Quirin (444-454).
  • Korematsu v. United States (454-468).
  • Authorization for Use of Military Force (434-435).
  • Hamdi v. Rumsfield (468-475).

Class 9 – 2/12/14

The Judicial Power

  • Judicial Power – Article III (486-491).
  • Correspondences of the Justices about Advisory Opinions (501-503).
  • “Case or Controversy” requirement (504-507).
  • Summers v. Earth Land Institute (513-519).
  • Political Question doctrine (519-520).
  • Luther v. Borden (520-528).
  • Art. III Jurisdiction of the Federal Courts (537).
  • Congressional authority over federal jurisdiction (544-548).
  • Ex Parte McCardle (550-557).

Class 10 – 2/17/14

Scope of Federal Powers I

  • Federalism (577-578).
  • Federalism Map (578-581).
  • Federalist No. 10 (581-587).
  • National Powers (588).
  • The Ninth and Tenth Amendment (1258-1262).
  • Early Disputes over National Power (588-591).
  • Gibbons v. Ogden (591-597).
  • History of Commerce and Necessary and Proper (598-605).
  • United States v. Darby (605-607).

Class 11 – 2/19/14

Scope of Federal Powers II

  • Wickard v. Filburn (607-612).
  • The modern debate (612).
  • Hearts of Atlanta Motel (612-617).
  • United States v. Lopez(617-637).

Class 12 – 2/24/14

Scope of Federal Powers III

  • Taxing Power (637-643).
  • The Spending “Power” (643-645).
  • United States v. Butler (645-648).
  • South Dakota v. Dole (648-656).
  • New York v. United States (657-670).
  • Printz v. United States (670-683)

Makeup Class – 2/21/14 or 2/22/43 or 2/23/14 

National Federation of Independent Business v. Sebelius (“Obamacare”)

  • Enumerated Powers and Federalism (597-598).
  • NFIB v. Sebelius (683-711).
  • NFIB Notes (711-715).
  • Additional reading to be posted.

Class 13 – 2/26/14

The Reconstruction Amendments

  • The Text, Structure, and History of the Reconstruction Amendments (1265-1266).
  • The Thirteenth Amendment (1266-1267).
  • The Fourteenth Amendment (1267-1271).
  • Slaughter-House Cases (1271-1287).
  • Notes (1288-1291).
  • Early Interpretation of Equal Protection (1292).
  • Bradwell v. Illinois (1292-1295).
  • Minor v. Happersett (1295-1301).
  • Strauder v. West Virginia (1301-1306).

Class 14 – 3/3/14

The Enforcement Powers of the 14th Amendment

  • Enforcement Powers (1306-1307).
  • The Civil Rights Cases (1307-1318).
  • Notes (1318-1322).
  • Note on 11th Amendment (1262-1263).
  • Sovereign Immunity (557-558).
  • 11th Amendment (558).
  • Chisolm v. Georgia (558-566).
  • Hans v. Louisiana (566-570).
  • United States v. Morrison (1322-1327).

Class 15 – 3/5/14

Equal Protection and Segregation

  • Citizenship Clause (768-771).
  • Dred Scott v. Sandford (771-794).
  • Dred Scott notes (794-800).
  • Segregation Cases (1337).
  • Railroad Company v. Brown (1337-1339).
  • Plessy v. Ferguson (1339-1346).

Class 16 – 3/10/14

Equal Protection and Desegregation

  • Cumming v. Board of Education (1346-1349).
  • Giles v. Harris (1349-1352).
  • Berea College v. Kentucky (1352-1359).
  • Desegregation Cases (1359-1360).
  • Board v. Board of Education (I) (1360-1363).
  • Bolling v. Sharpe (1363-1364).
  • Brown v. Board of Education (II) (1364-1365).
  • Notes (1365-1370).

Class 17 – 3/12/14

Affirmative Action

  • Discriminatory Intent v. Disparate Impact & Washington v. Davis (1379-1383).
  • Affirmative Action (1386-1389).
  • Grutter v. Bollinger (1389-1401).
  • Notes (1401-1405).
  • Fisher v. University of Texas, Austin (Readings to be posted).
  • Affirmative Action Outside Education (1405-1407).

Spring Break – No Classes on 3/17/14 and 3/19/14

Class 18 – 3/24/14

Race & Gender Discrimination

  • Loving v. Virginia (1373-1379).
  • Sex Discrimination (1407).
  • Craig v. Boren (1407-1416).
  • United States v. Virgnia (1416-1424).
  • Beyond Race and Sex (1425-1428).
  • “Fundemental Interests” (1441-1443). 

Class 19 – 3/26/14

Substantive Due Process and Economic Liberty

  • Due Process of Law (1443-1444).
  • Due Process and Separation of Powers (1444-1446).
  • Substantive due process (1463-1464).
  • Lochner v. New York (1465-1473).
  • West Coast Hotel v. Parrish (1473-1476).
  • Additional materials about Lochner to be posted.

Class 20 – 3/31/14

Individual Liberty I

  • Pierce v. Society of Sisters (1476-1478).
  • Buck v. Bell (1428-1432).
  • Griswold v. Connecticut (1478-1494).

Class 21 – 4/2/14

Individual Liberty II

  •  Eisenstadt v. Baird (1494-1500).
  • Roe v. Wade (1500-1516).
  • Planned Parenthood v. Casey (1516-1540).
  • Notes (1540-1544).

Class 22 – 4/7/14

Individual Liberty III

  • Bowers v. Hardwick (1552-1557).
  • Romer v. Evans (1432-1441).
  • Lawrence v. Texas (1557-1571).
  • Notes (1571-1572).
  • United States v. Windsor (Read to be posted).
  • Substantive due process review (1572).

Class 23 – 4/9/13

Procedural Due Process, Article IV Federalism, and the Treaty Power

  • Matthews v. Eldridge (1456-1463).
  • Article IV Federalism (741-744).
  • The Guarantee Clause (800). Texas v. White (starting with note 8 on p 811-815).
  • Treaty Power (736).
  • Missouri v. Holland (736-738).
  • Reid v. Covert (738-741).
  • United States v. Bond (Material to be posted).

Class 24 – 4/14/14 – CLASS CANCELLED

Class 25 – 4/16/14

The First Amendment – Speech I

  • The Addition of the Bill of Rights (43).
  • Amemdment Process – Article V (817-818).
  • Amendments Outside Article V (821-822 notes 14 and 15).
  • Barron v. Baltimore (48-53).
  • The BIll of Rights (827-831).
  • The First Amendment (831-839).
  • New York Times v. Sullivan (853-861).
  • Chaplinsky v. New Hampshire (880-884).
  • Categorical exlcusions (885-887).

Class 26 – 4/21/14

The First Amendment Speech II

  • Brown v. EMA (887-900).
  • United States v. O’Brien (900-907).
  • Texas v. Johnson (907-917).
  • Time, Place, and Manner Regulations (917-918).
  • Renton v. Playtime Theaters (918-924). Incitement (924). Clear and Present Danger (927-931 note 3).
  • Brandenburg v. Ohio (935-937).
  • Note on Central Hudson (979-980).

Class 27 – 4/23/14

The First Amendment – Free Exercise

  • Freedom of Religion (1103-1104).
  • Madisons’ Memorial and Remonstrance against Religious Assessments (1104-1106).
  • The Free Exercise Clause (1110-1111).
  • Stansburg v. Marks (1111-1113).
  • Employment Division v. Smith  (1116-1129).
  • City of Boerne v. Flores (1327-1337).
  • Hobby Lobby v. Sebelius (Materials to be Posted)

Class 28 – 4/28/14

The First Amendment – Establishment Clause and The Second Amendment

  •  Establishment Clause (1133).
  • American Jewish Congress v. City of Chicago and notes (1133-1147).
  • The Second Amendment (1192-1194).
  • District of Columbia v. Heller (1195-1212).

Class 29 – 4/30/14

Supreme Court Roundup

  • Readings TBD

Final Exam Review Session

Date TBD