Class Materials:



Constitutional Law

Professor Howard Wasserman Fall 2020

Office: RDB 2065 Monday, Thursday, 7-8:50 p.m.

Phone: 348-7482 Remote (via Zoom)

e-mail: howard.wasserman@fiu.edu

Office Hours: Tuesday/Wednesday, 10:30 a.m.-Noon

Friday, 10 a.m.-Noon

Whenever I am in my office

By Zoom appointment

Post questions about class discussions, course materials, etc., to the Con Law Blog.

Schedule Note

No class on Monday, September 28, for the Jewish Holy Day. Class to be made up on date TBD.

Course Outline

This course provides students with an introduction to the United States Constitution and the role of the courts in developing Constitutional Law. The course focuses on the structure of the Constitution, the powers of the legislative and executive branches, and individual rights under the Equal Protection and Due Process Clauses. The course combines doctrinal, historical, and theoretical component, so students will learn about constitutional powers, why those powers rest where they do, and whether other legal rules would be preferable or more effective. The course also focuses on the development and evolution of constitutional doctrine over time.

Required Class Materials

Jesse H. Choper, Michael C. Dorf, Richard H. Fallon, Jr., & Frederick Schauer, Leading Cases in Constitutional Law (West Academic Publishing 2019 ed.) (“Choper”)

Daniel Farber & Neil S. Siegel, United States Constitutional Law (Foundation Press 2019) (“Farber”)

• The United States Constitution appears in an Appendix in each book.

• Additional Materials may be posted to the Con Law Blog.

Remote Presentation

Because of the continuing coronavirus pandemic, this course will be taught remotely, via Zoom. All classes will be recorded and posted to Con Law Blog. If you are a panelist, you must have video on and audio ready to go; I will “call on” panelists at the beginning of class to place them on the front screen. If you are not a panelist, please have video on and audio on mute. If you are unable to keep video on, please 1) Let me know and 2) Have a recent photograph in your box, so I do not have to speak to a bunch of black boxes with names on them.

While not the ideal format for class, it can work. But it requires a special commitment from all class members to concentrate, to be present, and to engage. As described below, panelists will control much of the conversation. But I welcome and expect non-panelists to engage via “Chat” or “Raise Hand.” And it is essential to learning that you stay engaged and present even when not on panel.

Con Law Blog

A course blog has been setup, Wasserman’s Con Law Blog. To read the blog, go to ; posts can be read going down from most recent to least recent. To post to the blog, go to ; you can log-in with a username and password. The Syllabus will be posted on the Canvas shell for the course. But the Blog will be the primary means of exchange and communication.

To be able to post, you must register as an author and a reader. To register as an author, please send an e-mail to me (howard.wasserman@fiu.edu). In the subject line, type “Con Law Blog Registration;” in the body of the e-mail, please type your name and your e-mail address. You then will receive an e-mail “Invitation” inviting you to join as an author on the blog. You must follow the steps outlined in the invitation e-mail to register (under your full name, no handles or usernames) as an author. Please register under your full (first and last) name. Please do this at the beginning of the semester, as soon as you receive the invitation.

The blog serves several purposes. First is to make available the Syllabus and additional reading assignments, to be downloaded and read. I strongly recommend that you print out copies of these documents and bring them to class. Second, all classes will be recorded and the link posted to the blog. Those of you who are worried about being able to catch everything said in class can go back and listen to the class again and fill-in any gaps. Third, this is how I will communicate with you about assignments, materials, additional questions, and what you should be thinking about and preparing for the next class. I also will post ideas and thoughts clarifying and expanding on class discussions and the course materials that we just covered, including answering in-class questions that we were not able to cover fully in class. Prior to each class, I will post a series of questions that will guide the class discussion and your reading; you should review those questions as you prepare the material and be ready to discuss them. You should get in the habit of at least checking the blog at least a couple times during the day.

Fourth, and most importantly, the blog is a forum for an ongoing conversation about Constitutional Law The blog is intended to carry class discussions and conversations on the material outside the classroom, to enhance discussions beyond the limits of a 75-minute class session. This forum enables us to examine and discuss how these issues arise in real-world stories, cases, occurrences, events, as well as in the books you read and the TV shows and movies you watch. This also requires you to look beyond the course materials and to keep up with legal, social, cultural, and political events and link what happens to your own work.

This discussion will take the form of original posts by class members and me. I frequently will pose questions to be answered and discussed in writing on the Blog rather than class. Topics for blog posts include thoughts, ideas, and commentary on issues and materials discussed in class; questions about the material (I strongly encourage using this forum to discuss questions and concerns that arise in class); and discussion and analysis of news stories, books, movies, and television shows current events, and anything else relating to Con Law and the substance of this class. This also requires you to look beyond the course materials and to keep up with legal, social, cultural, and political events and link what happens to your own work. The site includes a "Blogroll" linking to a number of topical blogs and web sites, most of which highlight and comment on new cases, stories, issues, and legal developments on Constitutional Law. You should get in the habit of checking these information-aggregating blogs during the course of a day; they are going to be important resources in your practice lives.

There are no guidelines about length, content, or style, other than to insist that it be relevant to this class, that it be respectful, and that it be somewhat thought-out and well-written. Humor is good. Also, if the post is substantive, it ordinarily should contain some original thought or commentary. In other words, please do not simply cut-and-paste long portions of a case or article into the post; provide a link or cite and give a very brief synopsis or summary, along with your own thoughts on it.

Course Evaluation

Your grade will be based on four components:

1) Final Examination: (150-200 points):

Take-home examination for which you will have 48 hours. It will consist of a combination of short-answer and essay questions. More details to follow later in the semester.

2) Reaction Papers: 30 points total (15 points each)

Two (2) short reaction papers. See Course Evaluation information Sheet on Blog for details.

3) Class Participation (15 points):

Panels of 5-7 students will be “on” for each topic on the syllabus, to be assigned at random; I will cold-call from among those assigned panelists. Non-panelist students also will be able to make comments or ask questions via the “Raise Hand” feature or in the Chat. Although the panelists will be the primary participants, I expect everyone to have audio and video on and to be paying attention to the material and the discussion.

College of Law Academic Policies

This class is administered and conducted in accordance with all the provisions of the Florida International University College of Law Academic Policies, reprinted in the College of Law Student Handbook. Students are expected to be familiar with and to conduct themselves in line with those policies.

Class Assignments:

For each subject, the syllabus lists: Provisions (from the United State Constitution), Cases (from Choper, et al.), and Commentary (from Farber & Siegel). Assignments from Choper will list pages to be read, then identify the cases on which you should focus. Choper contains edited cases and descriptions of minor cases; Farber provides a big-picture overview of the doctrine and its details.

Introduction: The United States Constitution and Judicial Review

Provisions:

U.S. Const.: Review the Constitution as a whole. Get a sense of its structure and organization

U.S. Const. art. III

Cases: Choper, pp.1-33

Marbury v. Madison

Cooper v. Aaron

Martin v. Hunter’s Lessee

Baker v. Carr

Powell v. McCormack

Nixon v. United States

Zivotofsky v. Clinton

Rucho v. Common Cause

Commentary:

Farber, pp. 17-31, 43-48

Legislative Power:

Overview

Provisions:

U.S. Const. art. I §§ 8, 9

Necessary and Proper Clause

Provisions:

U.S. Const. art. I § 8 cl.18

Cases: Choper, pp. 37-43

McCulloch v. Maryland

United States v. Comstock

Commentary:

Farber, pp. 79-102

Commerce Clause

Introduction

Provisions:

U.S. Const. art. I § 8 cl.3

Cases: Choper, pp. 43-47

Gibbons v. Ogden

Commentary:

Farber, pp. 107-15

Economic Issues Before 1936

Provisions:

U.S. Const. art. I § 8 cl.3

Cases: Choper, pp. 48-50

Hammer v. Dagenhart

Schechter Poultry Corp. v. United States

Carter v. Carter Coal Co.

Commentary:

Farber, pp. 115-26

Economic Issues After 1936

Provisions:

U.S. Const. art. I § 8 cl.3

Cases: Choper, pp. 50-56

United States v. Darby

Wickard v. Filburn

Maryland v. Wirz

Perez v. United States

Commentary:

Farber, pp. 126-32

Protecting Civil Rights

Provisions:

U.S. Const. art. I § 8 cl.3

U.S. Const. amend XIII

U.S. Const. amend XIV §§ 1, 5

Cases: Choper, pp. 56-58

Heart of Atlanta Motel

Katzenbach v. McClung

Commentary:

Farber, pp. 132-34

Commerce Clause in the 21st Century

Provisions:

U.S. Const. art. I, § 8, cl.3

Cases: Choper, pp. 58-81

United States v. Morrison

Gonzalez v. Raich

NFIB v. Sebelius

Commentary:

Farber, pp. 134-49

Taxing and Spending

Provisions:

U.S. Const. art. I, § 8, cl.1

Cases: Choper, pp. 81-88

South Dakota v. Dole

NFIB v. Sebelius

Commentary:

Farber, pp. 163-72

Foreign Affairs

Provisions:

U.S. Const. art. I, § 8

U.S. Const. art. II, § 2

U.S. Const. art. VI

Cases: Choper, pp. 88-90

Missouri v. Holland

Bond v. United States

Congressional Regulation of State Governments:

Provisions:

U.S. Const. art. I § 8

U.S. Const. amend. X

Cases: Choper, pp. 90-101

National League of Cities v. Usery

Garcia v. San Antonio Metropolitan Transit Auth.

Printz v. United States

Commentary:

Farber, pp. 149-63

Executive Power:

Balance of Legislative and Executive Power

General

Commentary:

Farber, pp. 220-21

Domestic Matters

Provisions:

U.S. Const. art. I § 8

U.S. Const art. II § 1, cl.1

U.S. Const. art. II § 2

Cases: Choper, pp. 103-12

Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case)

Dames & Moore v. Regan

Medellin v. Texas

Commentary:

Farber, pp. 183-94

Foreign Affairs

Provisions:

U.S. Const. art. I § 8, cl.11

U.S. Const. art. II § 1, cl.1

U.S. Const. art. II § 2, cl.1-2

Cases: Choper, pp. 112-15

United States . Curtiss-Wright Export Corp.

Zivotofsky v. Kerry

Commentary:

Farber, pp. 206-09

Executive Power

Delegation of Rulemaking Power

Provisions:

U.S. Const. art. I § 8

Cases: Choper, pp. 115-16

Yakus v. United States

Whitman v. American Truckers Assn’s

United States v. Mead

Vetoes

Provisions:

U.S. Const. art. I § 7, cl.2-3

Cases: Choper, pp. 117-23

INS v. Chadha

Clinton v. New York

Commentary:

Farber, pp. 221-25,

Appointment and Removal

Provisions:

U.S. Const. art. II § 2, cl.2-3

Cases: Choper, pp. 123-33

Myers v. United States

Humphrey’s Executor v. United States

Morrison v. Olson

Free Enterprise Fund v. Public Company Accounting Oversight Board

NLRB v. Noel Canning

Seila Law v. CFPB (Blog)

Commentary:

Farber, pp. 194-205

Executive Privilege and Immunity

Provisions:

U.S. Const. art. II § 2 cl.1

Cases: Choper, pp. 133-37

United States v. Nixon

Nixon v. Fitzgerald

Clinton v. Jones

Trump v. Mazars USA (Blog)

Commentary:

Farber, pp. 225-28

State Power to Regulate

Dormant Commerce Clause

Basic Principles

Provisions:

U.S. Const. art. I § 8 cl.3

U.S. Const. art. IV § 2, cl.1

U.S. Const. amend. X

Cases: Choper, 139-45

Cooley v. Board of Wardens

Wyoming v. Oklahoma

Pike v. Bruce Church, Inc.

Commentary:

Farber, pp. 159-62

Facially Discriminatory Statutes

Provisions:

U.S. Const. art. I § 8 cl.3

U.S. Const. art. IV § 2, cl.1

U.S. Const amend. X

Cases: Choper, 145-51

Baldwin v. G.A.F Seelig, Inc.

Philadelphia v. New Jersey

Maine v. Taylor

Sporhase v. Nebraska

Tennessee Wine & Sprits Retailers Ass’n v. Tennessee Alcoholic Beverage Comm’n

Congressional Authorization

Provisions:

U.S. Const. art. I § 8 cl.3

U.S. Const. art. IV § 2, cl.1

U.S. Const amend. X

Cases: Choper, pp. 151-53

Prudential Ins. Co. v. Benjamin

Statutes Favoring Government

Provisions:

U.S. Const. art. I § 8 cl.3

U.S. Const. art. IV § 2, cl.1

U.S. Const amend. X

Cases: Choper, pp. 153-58

United Trash Haulers Ass’n v. Oneid-Herkimer Solid Waste Management Auth.

Dept. of Revenue v. Davis

Facially-Neutral-But-Burdensome Statutes

Provisions:

U.S. Const. art. I § 8 cl.3

U.S. Const. art. IV § 2, cl.1

U.S. Const amend. X

Cases: Choper, pp. 158-64

Breard v. Alexandria

Hunt v. Washington Apple Advertising Comm’n

Minnesota v. Clover Leaf Creamery Co.

Subsidies

Provisions:

U.S. Const. art. I § 8 cl.3

U.S. Const. art. IV § 2, cl.1

Cases: Choper, pp.68

West Lynn Creamery, Inc. v. Healy

State as Market Participant

Provisions:

U.S. Const. art. I § 8

U.S. Const. amend. X

Cases: Choper, 168-72

Reeves, Inc. v. Stake

South-Central Timber Development, Inc. v. Wunnicke

Privileges and Immunities

Provisions:

U.S. Const. art. IV § 2, cl.1

Cases: Choper, pp. 172-77

United Building & Construction Trades Council v. Mayor of Camden

Economic Substantive Due Process

Origins

Provisions:

U.S. Const. amend V, IX, XIV (§§ 1, 5)

Cases: Choper, pp. 179-88

Calder v. Bull

Barron v. Mayor and City Council of Baltimore

Slaughterhouse Cases

Commentary:

Farber, pp. 255-57

Lochner and its Era

Provisions:

U.S. Const. amend V, IX, XIV (§§ 1, 5)

Cases: Choper, pp. 188-96

Lochner v. New York

Commentary:

Farber, pp. 257-59

The End of Lochner

Provisions:

U.S. Const. amend V, IX, XIV (§§ 1, 5)

Cases: Choper, 196-203

Nebbia v. New York

United States v. Carolene Products Co.

Williamson v. Lee Optical of Oklahoma, Inc.

Commentary:

Farber, pp. 260-67

Takings Clause

Provisions:

U.S. Const. amend. V

Cases: Choper, pp. 203-10

Kelo v. New London

Commentary:

Farber, pp. 267-73

Individual Liberty and Substantive Due Process

Incorporation

Provisions:

U.S. Const. amend. V, IX, XIV (§ 1)

Cases: Choper, pp. 213-19

Barron v. Mayor and City Council of Baltimore

Reproductive Freedom

Provisions:

U.S. Const. amend. V, IX, XIV (§ 1)

Cases: Choper, 223-56

Griswold v. Connecticut

Roe v. Wade

Planned Parenthood of Southeastern Pennsylvania v. Casey

Whole Women’s Health v. Hellerstedt

Commentary:

Farber, pp. 381-410

Right to Die

Provisions:

U.S. Const. amend. V, IX, XIV (§ 1)

Cases: Choper, pp. 257-68

Commentary:

Farber, pp. 421-25

Sexual Liberty

Provisions:

U.S. Const. amend. V, IX, XIV (§ 1)

Cases: Choper, pp. 269-84

Bowers v. Hardwick

Lawrence v. Texas

Commentary:

Farber, pp. 410-16

Family Life and Marriage

Provisions:

U.S. Const. amend. V, IX, XIV (§ 1)

Cases: Choper, pp. 284-301

Loving v. Virginia

Obergefell v. Hodges

Commentary:

Farber, pp. 378-81, 416-21

Equal Protection:

General Discrimination

Provisions:

U.S. Const. amend. XIV

Cases: Choper, pp. 693-701

Race and Ethnicity Discrimination

Discrimination Against Racial and Ethnic Minorities

Provisions:

U.S. Const. amend XIII

U.S. Const. amend. XIV (§ 1)

Cases: Choper, pp. 701-14, 720-23

Dred Scot v. Sandford

Strauder v. West Virginia

Plessy v. Ferguson

Korematsu v. United States

Loving v. Virginia

Commentary:

Farber, pp. 279-95

School Desegregation

Provisions:

U.S. Const. amend. V, XIV (§ 1)

Cases: Choper, pp. 715-34

Brown v. Board of Education I

Bolling v. Sharpe

Brown v. Board of Education II

Parents Involved in Community Schools v. Seattle School Dist.

Commentary:

Farber, pp. 295-304

De Jure v. De Facto Segregation

Provisions:

U.S. Const amend. XIV (§ 1)

Cases: Choper, pp. 734-42

Yick Wo v. Hopkins

Washington v. Davis

Personnel Administrator v. Feeney

Commentary:

Farber, pp. 308-13

Affirmative Action

Provisions:

U.S. Const. amend. XIV (§ 1)

Cases: Choper, pp. 742-56

Regents of Univ. of California v. Baake

Grutter v. Bollinger

Fisher v. University of Texas

Adarand Construction Co. v. Pena

Commentary:

Farber, pp. 313-24

Gender Discrimination

Provisions:

U.S. Const. amend. XIV (§ 1)

Cases: Choper, pp. 758-72

Craig v. Boren

United States v. Virginia

Nguyen v. INS

Sessions v. Morales-Santana

Commentary:

Farber, pp. 324-44

Other Classifications

Sexual Orientation

Provisions:

U.S. Const. amend XIV (§ 1)

Cases: Choper, pp. 776-84

Romer v. Evans

Lawrence v. Texas

Alienage

Provisions:

U.S. Const. amend. V, XIV (§ 1)

Cases: Choper, pp. 785-89

Ambach v. Norwick

Other Bases for Discrimination

Provisions:

U.S. Const. amend. V, XIV (§ 1)

Cases: Choper, pp. 789-92

Fundamental Rights

Voting

Provisions:

U.S. Const. amend. V, XIV (§ 1), XV, XIX, XXVI)

Cases: Choper, pp. 792-98

Harper v. Virginia State Bd. of Elections

Kramer v. Union Free School District

Crawford v. Marion County Elections Bd.

Travel

Provisions:

U.S. Const. art. IV § 2, cl.1

U.S. Const. amend. XIV (§ 1)

Cases: Choper, pp. 822-26

Saenz v. Roe

Commentary:

Farber, pp. 366-69

Welfare and Education

Provisions:

U.S. Const. amend. V, XIV (§ 1)

Cases: Choper, pp, 826-38

San Antonio Indep. Sch. Dist. v. Rodriguez

Plyler v. Doe

Commentary:

Farber, pp. 369-76

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