Constitutional Law



This course will examine some of the basic issues involved in American Constitutional Law.  How can a court of law protect rights not explicitly mentioned in the law?  What are your fundamental rights, and how do they differ from plain-old rights?  Where is the boundary between “church” and “state”?  How far does the right to free speech extend?

We will attempt to gain a greater understanding of what precisely goes on inside the Supreme Court by carefully examining some of its decisions.  In addition to learning how the Court has ruled in a particular case, special attention will be paid to the sort of reasoning that it has traditionally accepted—or rejected.  The course will be organized thematically, covering several cases in each class, but we will focus more intently on one or two each time we meet.

Most of the cases can be found in the casebook or in the yearly supplement (listed below under “Required Texts”), but a few come from the course packet.  I have included the citations for these cases should you wish to acquire them on your own.  Most are available online or in the library.  Students should have read the relevant material before coming to class; please be sure to read the corresponding sections in both the casebook and the supplement.

Essay topics will be distributed via email two weeks before they are due.  If possible, students are encouraged to submit their essays electronically; those possessed of a perverse delight at the sight of landfills may deliver their papers to my office.  Lecture notes will also be distributed electronically after they have been read so that students can instead take notes on their own thoughts and perhaps even interrupt the lecture with a question or two, rather than practice their shorthand.


Required Texts:

  • Erwin Chemerinsky, Constitutional Law (New York:  Aspen Publishers, 2001).  ISBN:  0-7355-2061-5
  • Erwin Chemerinsky, Constitutional Law 2004 Supplement (New York:  Aspen Publishers, 2004).  ISBN:  0-7355-4464-6
  • Course Packet (cases also available from,,


15%   First Essay, due by 5pm on February 18.  Essays should not exceed 1500 words.  Late essays will be penalized 3%, plus 2% per day, excluding holidays and weekends (e.g., 5% for the first day, 7% for the second, 9% for the third, etc.).  Late penalties will cease to accrue once they reach 21%, though students are of course encouraged to submit papers beyond this point.

25%   Second Essay, due by 5pm on March 15.  Essays should not exceed 3000 words.  Late penalties as for the first essay.

25%   Third Essay, due by 5pm on April 15.  Essays should not exceed 3000 words.  Late penalties as for the first essay.

35%   Final Essay, due by 4pm on May 16.  Essays should not exceed 4500 words.  Late essays will be penalized 10% per calendar day with no maximum penalty.  It would be very bad to hand this essay in late!


Class Schedule:

I: The Federal Judicial Power

  • The Authority for Judicial Review (I.A); Interpretive Limits (I.B.1); Palm Beach County Canvassing Board v. Harris, 772 So. 2d 1220 (2000); Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000).
  • Prohibition of Advisory Opinions (I.B.3.a); Standing (I.B.3.b)
  • Ripeness (I.A.3.c); Mootness (I.B.3.d); The Political Question Doctrine (I.B.3.e).

II: The Federal Executive Power

  • Inherent Presidential Power (III.A); The Authority of Congress to Increase Executive Power (III.B).
  • Separation of Powers and Foreign Policy (III.D).
  • Separation of Powers and Foreign Policy (III.D); Introduction to Supplement; Rasul v. Bush, No. 03-334 (2003 — not yet in bound volume).

III: The Structure of the Constitution’s Protection of Civil Rights and Civil Liberties

  • Introduction (V.A); The Application of the Bill of Rights to the States (V.B).
  • The Application of the Bill of Rights and the Constitution to Private Conduct (V.C).

IV: Economic Liberties

  • Introduction (VI.A); Economic Substantive Due Process (VI.B).
  • The Takings Clause (VI.D).

V: Equal Protection

  • Introduction (VII.A); The Rational Basis Test (VII.B).
  • Race Discrimination and Slavery Before the Thirteenth and Fourteenth Amendments (VII.C.1); Strict Scrutiny for Discrimination Based on Race and National Origin (VII.C.2)
  • Race and National Origin Classifications on the Face of the Law (VII.C.3.a).
  • Facially Neutral Laws with a Discriminatory Impact or with Discriminatory Administration (VII.C.3.b).
  • Remedies (VII.C.4); Racial Classification Benefiting Minorities (VII.C.5).
  • Gender Classification (VII.D).

VI: Fundamental Rights Under Due Process and Equal Protection

  • Introduction (VIII.A); Framework for Analyzing Fundamental Rights (VIII.B); Constitutional Protection for Family Autonomy (VIII.C).
  • The Right to Procreate (VIII.D.1); The Right to Purchase and Use Contraceptives (VIII.D.2).
  • The Recognition and Reaffirmation of the Right to Abortion (VIII.D.3.a); Government Regulation of Abortions (VIII.D.3.b).
  • Government Restrictions on Funds and Facilities for Abortions (VIII.D.3.c); Spousal Consent and Notice Requirements (VIII.D.3.d); Parental Notice and Consent Requirements (VIII.D.3.e).
  • Constitutional Protection for Sexual Orientation and Sexual Activity  (VIII.F).
  • The Right to Vote as a Fundamental Right (VIII.I.1); Restrictions on the Ability to Vote (VIII.I.2); Dilution of the Right to Vote (VIII.I.3).
  • Counting “Uncounted” Votes in a Presidential Election (VIII.I.4 [see supplement]); Palm Beach County Canvassing Board v. Harris, 772 So. 2d 1220 (2000); Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000); Gore v. Harris, 772 So. 2d 1243 (2000); Cert regarding Bush v. Gore, 531 U.S. 1046 (2000).
  • Constitutional Protection for Access to Courts (VIII.J).
  • Procedural Due Process (VIII.L).
  • Protection of Criminals (not included in casebook; available on WebCT).  Mapp v. Ohio, 367 U.S. 643 (1961); Arizona v. Evans, 514 U.S. 1 (1995).

VII: Freedom of Expression

  • Introduction (IX.A); The Distinction Between Content-Based and Content-Neutral Law (IX.B.1).
  • Vagueness and Overbreadth (IX.B.2).
  • Prior Restraints (IX.B.3); What Is an Infringement of Freedom of Speech (IX.B.4).
  • Incitement of Illegal Activity (IX.C.1).
  • Fighting Words, the Hostile Audience, and the Problem of Racist Speech (IX.C.2).
  • Sexually Oriented Speech (IX.C.3).
  • Sexually Oriented Speech (IX.C.3 [continued]).
  • Conduct that Communicates (IX.C.6).
  • Government Properties and Speech (IX.D.1).

VIII: Religion

  • Introduction (X.A); The Free Exercise Clause (X.B).
  • Competing Theories of the Establishment Clause (X.C.1); Government Discrimination Among Religions (X.C.2); The Lemon Test (X.C.3).
  • Religious Speech and the First Amendment (X.C.4).
  • When Can Religion Become a Part of Government Activities? (X.C.5); When Can Government Give Aid to Religion? (X.C.6).

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