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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