Assignments

Questions to Consider: Class 1 will focus on (a) providing an overview of the Constitution's rights-protecting provisions; (b) the adoption of the Bill of Rights in 1791, and (c) the status of constitutional rights in the pre-Civil War era.

Why do you think the the First Congress amended the Constitution to add the Bill of Rights? Why do you think those rights weren't included in original constitutional text? What purpose do those individual rights protections serve, and how does the Bill of Rights help support some of the core values embodied by the separation of powers and federalism provisions you talked about in Constitutional Law I? 

This class will focus on two cases -- Barron and Dred Scott -- that are no longer good law, but will give us insight into the scope of the Constitution's liberty and equality protections in the years prior the Civil War and the Reconstruction Amendments. 

Given that slavery is indirectly referenced several times in the constitutional text, how does that affect the role you think original intent should play in constitutional interpretation? When is it appropriate for courts to intervene in a political crisis (as the Dred Scott Court attempted to do)? What effect did the Dred Scott decision have on the legal status of Black Americans prior to the Civil War? From a legal perspective, what's wrong with the Dred Scott decision? What's the political context in which the Court decides Dred Scott? When it comes to difficult questions of constitutional interpretation, is there a clear division between politics and law? What makes it difficult to talk about race in a law school classroom? 

How did Barron v. Baltimore affect the scope of the Bill of Rights? Why do you think the Court decided Barron the way it did? What does Barron tell us about the relationship between federalism and individual rights in the pre-Civil War Constitution?

Questions to Consider: Class 2 will focus on four topics: (a) the Reconstruction Amendments and their effect on constitutional law, (b) the Court's initial attempt to interpret the scope of the 14th Amendment in Slaughterhouse and the effect of that decision, (c) the scope of the 14th Amendment's Privileges or Immunities Clause, and (d) the rules governing incorporation of the Bill of Rights against the states. 

In light of their text and the history surrounding their adoption, what do you think the Reconstruction Amendments' core purpose is? How, if at all, should your assessment of the Amendments' purpose affect the way the Amendments are interpreted? How are the Reconstruction Amendments different from the rights provisions contained in the Bill of Rights? How do the Reconstruction Amendments alter the balance of power between the federal government and the states? What's the relationship between Section 1 of the 14th Amendment and Dred Scott?

Identify the constitutional basis for each of the four legal claims brought by the Slaughterhouse plaintiffs. Do you think any of the claims are stronger than others, and if so, why? According to Slaughterhouse, what are the "privileges or immunities" covered by the 14th Amendment? Was Slaughterhouse correctly decided? If not, what alternative interpretation of the 14th Amendment Privileges or Immunities Clause would you offer? Why do you think the Court chose Slaughterhouse as the first case to interpret what the Reconstruction Amendments mean? How, if at all, do you think the Reconstruction Amendments changed the Constitution's approach to both federalism and individual liberty?

Why is incorporation considered one of the most important legal developments in 20th Century constitutional law? How does incorporation change the relationship between the Constitution and the states? Do you think the 14th Amendment's Due Process Clause is the correct legal vehicle for incorporating the Bill of Rights?

Questions to Consider: We move to a new topic today: the Fourteenth Amendment's Equal Protection Clause. Class 3 will focus on four topics: (a) Footnote 4 of Carolene Products and its lasting effect on 14th Amendment doctrine since the end of the Lochner Era in 1937, (b) the standards of review governing claims brought under the Equal Protection Clause, (c) the legal rules governing the application of rational basis scrutiny under the Equal Protection Clause, and (d) understanding and applying the concepts of under-inclusion and over-inclusion.

What's the purpose of the 14th Amendment's Equal Protection Clause, and what goals was it designed to accomplish? In light of the historical context for the Reconstruction Amendments, how do you think it should apply to classifications that have nothing to do with race, like sex or disability or sexual orientation? Carefully review Footnote 4 of Carolene Products: why is Footnote 4 widely regarded as the most significant footnote in Supreme Court history? What constitutional interests does the footnote protect? Under Footnote 4, what sorts of government actions are going to get a closer second look by the judiciary? What does a "discrete and insular minority" mean? Does Footnote 4 provide manageable standards for judges charged with interpreting the 14th Amendment?

Does the rational basis test grant too much deference to government policies? How might we justify applying a deferential standard of review to most Equal Protection claims? Do you think Railway Express was correctly decided? How does the Court define "equal treatment"? What methodology should the Court use to determine whether the government's purpose is illegitimate? Under what circumstances should the Court allow legislatures to use under-inclusive classifications? Why are under-inclusive laws problematic? Why do you think the Court is unwilling to require a closer "fit" between means and ends when applying rational basis scrutiny?

Questions to Consider: Class 4 will continue our discussion of rational basis scrutiny, focusing on (a) the legal rules governing the application of rational basis scrutiny under the Equal Protection Clause, and (b) cases where the Court has struck down state actions using rational basis scrutiny.

Why are over-inclusive laws problematic? How do the concepts of under-inclusion and over-inclusion apply to the regulation in Beazer? Do over-inclusive laws raise different concerns than under-inclusive laws?

Today's reading assignment consists of a rare case (Cleberne) where the Court invalidates legislation under the Equal Protection Clause using rational basis scrutiny (they're so rare that I call them "unicorn" cases, but they are often referred to as the "animus cases" or the "rational basis with bite" cases). Do you think the Court is actually applying "plain vanilla" rational basis scrutiny in these cases, or something more? Why exactly are negative attitudes (i.e. "animus") towards a group problematic under the Equal Protection Clause? Should moral disapproval of individual behavior constitute a legitimate basis for government regulation, and if so, under what circumstances? What's wrong with legislatures taking their constituents' moral preferences into account when drafting legislation? Don't negative attitudes towards someone or something drive most of the state's efforts to regulate behavior? 

Do you agree with the Court's holding in Moreno? Why is discrimination against hippies an illegitimate purpose? Do you think the state's actions in Moreno are more permissible than its actions in Cleberne?

Questions to Consider: Class 5 will begin our discussion of race-based classifications and will focus on (a) the legal rules that govern classifications that are subject to strict scrutiny under the Equal Protection Clause, and (b) invidious race discrimination: applying the Equal Protection Clause to race-based classifications that operate to the disadvantage of racial minorities.

What exactly is the holding in Romer, and how do you think it applies to other laws that classify based on sexual orientation? What's the classification under review in Romer, and what exactly is the Court's problem with the classification's "fit"? What would a "broad" version of Romer's holding look like? What about a "narrow" version? Should the Court subject laws that classify based on sexual orientation to some form of heightened scrutiny, and if so, why? Does your answer to that question depend on whether sexual orientation is immutable? The degree to which sexual minorities are able to assert their interests through the political process?

Should strict scrutiny apply to all race-based classifications, regardless of which race(s) benefit from or are burdened by the classification? What do you think accounts for the Court's decision in Korematsu? Should different constitutional rules apply during periods of war or national emergency? Is there ever a valid reason for the government to discriminate based on race? Under what circumstances are invidious racial classifications still permissible? How should the Equal Protection Clause apply to a federal policy that uses national origin as a factor in determining which passengers to stop and search at an airport?

Questions to Consider: Class 6 will continue our discussion of race-based classifications, focusing on (a) the Constitution's treatment of laws mandating racial segregation, and (b) the Court's interpretation and application of the Equal Protection Clause in Brown v. Board of Education.

What assumptions does the Plessy Court make about race? What exactly is wrong, from a legal perspective, with the Plessy opinion? Does the Equal Protection Clause actually prohibit racial separation as long as all races are treated equally? What exactly does Justice Harlan mean when he says the Constitution is "color blind"? 

Is the NAACP's model for using the legal system to facilitate social change applicable today? Why or why not? Was Brown correctly decided as a matter of law?  Would a rigid insistence on separate but truly equal facilities have done more for the African-American community than the approach the Court adopted in Brown? How would you re-write the Brown opinion to strengthen its legal arguments?

Questions to Consider: Class 7 will (a) continue our discussion of Brown and its aftermath, and (b) explore the application of the Equal Protection Clause to laws mandating racial facially-neutral classifications that have a disparate impact on particular populations. 

What evidence should the Court consider in determining whether there is a discriminatory purpose? Under what circumstances might historical evidence be sufficient to infer discriminatory intent? What level of scrutiny would you apply to disparate impact claims under the Equal Protection Clause? Under what circumstances should courts be able to infer discriminatory intent from the mere fact of discriminatory impact?

Questions to Consider: Class 8 will explore affirmative action and the use of race-based classifications that benefit racial minorities in both public employment and higher education.

What government purpose(s) should be sufficient to allow the use of race-based classifications to survive strict scrutiny? From a constitutional perspective, should the use of race-based classifications to benefit racial minorities in an employment context be treated any differently than the use of race-based classifications to benefit racial minorities in higher education?

To what extent should the Equal Protection Clause allow public universities and law schools to affirmatively consider race as part of their admissions process? Do you agree with the holding and reasoning of the SFA case? What impact do you think the SFA decision will have on higher education in the United States?  Suppose you were legal counsel to a large state university -- how would you advise the university to design its admission policy in light of SFA? 

Questions to Consider: Class 9 will focus on applying the Equal Protection Clause to (a) sex-based classifications, and (b) alienage-based classifications, 

How are sex-based classifications similar to or different from racial classifications? Why do sex-based classifications deserve any form of heightened scrutiny? Does the Court provide an adequate answer to that question? Do you think the Framers of the 14th Amendment were concerned about sex discrimination? Why does the Court choose to apply intermediate scrutiny instead of strict scrutiny to sex-based classifications? 

Is the standard the Court applies in VMI meaningfully different from the standard in Craig? How should the Court deal with sex-based classifications that are justified by "real" differences between men and women rather than sex stereotypes? What about gender-based affirmative action programs? Laws that discriminate based on gender identity rather than sex?

Should the Court treat alienage as a suspect classification? Why or why not? How, if at all, is alienage different from other suspect classifications, like race and sex? 

Questions to Consider: Class 10 will focus on (a) conclusing our discussion of alienage classifications under the Equal Protrection Clause, (b) the application of the Clause to other classifications, like wealth and sexual orientation, (c) the concept of "substantive due process" under the 14th Amendment, (d) the application of substantive due process doctrine to economic regulations, and (f) the Court's decision in Lochner.

Do you think the Court is manipulating the level of scrutiny it applies in Equal Protection cases, without any consistent guiding principles, in order to get the result it wants? What level of scrutiny would you apply to classifications based on age? Wealth? Sexual Orientation?

What does the word "liberty" in the 14th Amendment's Due Process Clause mean? What constraints, if any, exist on a judge's ability to interpret the term? Does the Due Process Clause only concern the "process" that a person who is deprived of their "life, liberty, or property" is entitled to, or does it contain a "substantive" component?

The major case for today, Lochner, is bad law, but it is nevertheless a critically important substantive due process case. Was Lochner wrongly decided, and if so, why? If you think it was wrongly decided, does that mean that other cases involving unenumerated individual rights, like Roe v. Wade, were wrongly decided as well? How closely should a court scrutinize a legislature's reasons for doing something? How should the Court treat evidence that a legislature adopted a policy to appease special interests rather than adopting the policy for the general good of all? Should evidence of special interest influence have any constitutional significance for substantive due process claims, and if so, why? How are Justice Harlan's and Justice Holmes' dissents in Lochner different? Which do you agree with?

How should the Court deal with political fallout from its rulings? Is it appropriate for the Court to respond to public opinion by altering its doctrinal approach? Why do you think the Court rejected Lochner? Think back to the Court's 1937 "switch in time" -- are your feelings about the Court's rejection of Lochner any different than your feelings about the Court's shift in its interpretation of the Commerce Clause?

Questions to Consider: Class 11 will focus on (a) concluding our discussion of economic substantive due process, and (b ) the application of substantive due process to regulations on marriage.

Are opticians a "discrete and insular" minority under Footnote 4, and if not, why not? Should the Court care if legislators misunderstand the impact of legislation they are voting on? Should the Court adopt a more aggressive approach to economic legislation?

What standard of review is the Court applying in Obergefell? Is Obergefell a Due Process case or an Equal Protection case? What does Justice Kennedy mean when he talks about "dignity" in Obergefell? 

How should courts define what a "family" is? Why exactly are rights related to family relationships treated as fundamental? Don't we allow government to regulate many areas of family life and interaction? How effective is the Court at distinguishing these cases regulating family relationships from the economic regulation the Court struck down in Lochner? How should the Court define "tradition" and what methodology should it use to identify whether a given practice is deeply rooted in tradition? Should tradition matter at all in these cases, and if so, why?

Questions to Consider: Class 12 will focus on the application of substantive due process to regulations that infringe on family autonomy, including (a) parental custody, (b) cohabitation among family members, and (c) parental choices about how to raise their children.

Why do we treat relationships between family members as fundamental for due process purposes? Why does state regulation of family relationships feel particularly invasive? Doesn't the state have a strong interest in regulating family relationships? 

What standard of review is the Court applying in Troxel? Is Troxel consistent with past precedent? How should the Court deal with situations, like Troxel, where there are competing individual liberty interests on both sides of the case? Should the Court grant greater deference to legislative decision-making in those situations? Is the Court in Skinner advancing liberty interests, equality interests, or both?

Questions to Consider: Class 13 will focus on the application of substantive due process to restrictions on individual decisions related to reproduction and birth control. 

Which of the opinions in Griswold would you sign onto? Do you think the Constitution contains unenumerated rights, and if so, which provision provides the strongest legal authority for those rights? How would you interpret which rights are "retained by the people" under the Ninth Amendment? Is tradition a sufficient guide to determine whether an unenumerated right is constitutionally protected?

Questions to Consider: Class 14 will focus on the application of substantive due process on abortion regulation.

Suppose you were assigned to redraft the majority opinion in Roe. How might you provide a more secure interpretive foundation for the right to obtain an abortion? Is Roe just an exercise in "Lochnerizing"? Are abortion regulations problematic because they regulate the physical body? Because they affect important life decisions? Because they have a disproportionate impact on women? How should courts go about determining whether a fetus is a "life" entitled to protection under the Due Process Clause? Is this a decision that should be made by judges or legislatures?

What do you think of the reasoning in Dobbs? Do you agree with the court's interpretive methodology? How do you account for the broad shift from Roe to Dobbs? What impact do you think Dobbs will have on other areas of substantive due process? 

Questions to Consider: Class 15 will focus on the application of substantive due process to restrictions on medical decision-making.

Do you agree with the Court's holding in Jacobson? Do you think it gives sufficient weight to liberty interests related to bodily autonomy? Do you think it's reconcilable with Lochner, a case that was decided around the same time? What is the rule the Glucksberg Court uses to determine whether a right is fundamental? Do you agree with the rule? Can you reconcile Glucksberg with the right to refuse medical treatment? Is there a principled legal difference between a right to refuse life sustaining medical treatment and the right to affirmative seek a doctor's assistance to hasten one's death?   After Glucksberg, are there circumstances where an individual might still be able to assert a constitutional right to assisted suicide?

Questions to Consider: Class 16 will focus on applying substantive due process to (a) restrictions on consensual sexual activity between adults, (b) restrictions on the ability to travel, and (c) regulations that affect access to and the quality of public education.

When defining fundamental rights in a given case, what level of abstraction should the Court use? Should the Court account for the current status of a political debate on an issue, and if so, how? Under what circumstances is it appropriate for the state to assert moral disapproval as a state interest to justify regulation? How does the rule the Court uses in Lawrence to determine whether a fundamental right exists differ from the test the Court uses in Glucksberg? 

Under what circumstances is it appropriate for the Court to ignore stare decisis? Does Lawrence establish a fundamental right, and if so, how would you define that right? What's the difference between a "fundamental right" and a "liberty interest"? Is international law a legitimate source of authority for constitutional interpretation? Should the Court give weight to decisions by constitutional courts outside the United States? After Lawrence, does the state have the power to adopt laws prohibiting adultery? Consensual incest between adult siblings? After Lawrence, is morality still a legitimate state interest? Why isn't Lawrence an equal protection decision? Does it--or should it--have any impact on how sexual orientation-based classifications are treated under the Equal Protection Clause? Given all the criticism by judges and academics, how do you explain the continued survival of substantive due process? 

Was Rodriguez correctly decided? Does the Constitution contain affirmative rights, like a right to welfare or housing? Would you prefer to have a constitution that contained those rights? Should courts apply heightened scrutiny to laws that affect access to public education?

Questions to Consider: Class 17 will focus on (a) the rules governing the types of deprivations that trigger procedural due process claims, and (b) the rules governing determinations about the process that is "due" in procedural due process claims.

Do you agree with the Court's decision in Goldberg? Is the Framers' conception of property relevant in determining whether there is a protected interest? What sorts of incentives does the Roth decision impose on states? Do you agree with the test the Court sets out in Mathews? Is the Mathews standard workable, or would some sort of bright line rule be more efficient and effective?

Questions to Consider: Class 18 will focus on (a) the scope of the right to bear arms under the Second Amendment, and (b) briefly consider the right to vote.

Do you think the Court properly interprets the text of the Second Amendment in Heller? Both the Heller majority and dissent rely on historical interpretive modalities to make their arguments -- would you rely on history to resolve textual ambiguity? If not, what modality would you rely on instead? What do you think about the Court's interpretive methodology in Bruen? What does it mean for other gun control restrictions? Do you think it has potential application outside of the Second Amendment context?

Questions to Consider: Class 19 will focus on (a) providing an overview of the policy interests advanced by the First Amendment's Free Speech Clause, (b) the distinction between content-based and content-neutral regulations of speech, and (c) the standard of review that apply to content-based restrictions on speech.

What do you think the underlying purpose of the First Amendment is? How do you think that purpose should affect the way courts apply the Free Speech clause? What are the dangers associated with content-based speech regulations? Are there situations in which you think the First Amendment should allow content-based regulations on speech, and if so, how would you go about determining what those situations are? 

Questions to Consider: Class 20 will focus on two areas: (a) content-based regulation of speech, and (b) the First Amendment rules that apply to speech made by the government.

Is there anything wrong, from a constitutional perspective, with the government only choosing to subsidize speech that aligns with selected values? Why might it be a good idea to exempt government speech from First Amendment scrutiny? Is the government really speaking when a monument is donated by a private party? Do you think the government could decide to only display monuments that portray members of the Democratic Party? 

Questions to Consider: Class 21 will focus on (a) the two mechanisms for bringing facial challenges to restrictions on speech (vagueness and overbreadth), (b) the rules governing prior restraints on speech, and (c) the rules governing speech compelled by the government. 

What exactly is so terrible about prior restraints? Should the First Amendment apply the same way during periods of wartime? How closely should courts review assertions by the executive branch that a restriction on speech is necessary for national security? Suppose Congress had specifically authorized the President to seek an injunction against the New York Times--would that affect your opinion on whether the Pentagon Papers case was correctly decided? 

What exactly is problematic about the government compelling the Barnette children to participate in the Pledge of Allegiance? Don't most educational environments compel students to say and write things they don't want to say or write? Do you think the websites developed by 303 Creative are speech? Conduct? Some combination of speech and conduct? Is it relevant that 303 Creative is a commercial entity providing a service? What are the potential implications of the case for the enforcement of anti-discrimination laws on businesses that deny service based on other protected classifications? What other sorts of entities does the holding in 303 Creative apply to?

Questions to Consider: Class 22 will begin our examination of content-based speech regulations that are either unprotected or less protected under the First Amendment with a discussion of (a) restrictions on speech designed to incite illegal activity, (b) the rules governing content-based restrictions that target (a) speech designed to provoke a violent reaction in the listener (fighting words), and (c) true threats.

Do you agree with the Brandenberg test for incitement? Would you make any adjustments to the test in times of crisis? Is the test too speech-protective? Why should the Court be so concerned about imminence -- isn't inciting illegal behavior in the future just as bad? Do "fighting words" have any value or advance any of the First Amendment's core interests? Should the First Amendment account for the emotional injuries caused by "fighting words" or hate speech? Why should the First Amendment protect speech that causes significant social harm? 

Questions to Consider: Class 23 will focus on the rules governing content-based restrictions on (a) hate speech, (b) obscene speech, and (c) indecent speech.  

Would you designate hate speech as a separate category of unprotected speech? What's the value of hate speech from a First Amendment perspective? What exactly is unconstitutional about the St. Paul ordinance the Court strikes down in R.A.V.?

What are the reasons for excluding obscene sexually-oriented speech from First Amendment protection? How easy do you think it is to apply the Miller test? Why is profane speech worth protecting? Doesn't it actually make the exchange of ideas more difficult? What's the value of protecting violent speech? Do you think it's necessary to regulate the speech in order to shut down the underlying conduct? 

Questions to Consider: Class 24 will focus on the First Amendment issues raised by (a) defamatory speech, and (b) restrictions on conduct that has an expressive component, like flag burning. 

What limits, if any, does the First Amendment impose on efforts to collect tort damages for defamatory speech? Do you think the standard the Court articulates in Sullivan is too speech-protective? How would the world be different if the Sullivan Court had articulated a standard that was more receptive to defamation claims brought by public officials?

Should the Court apply something other than strict scrutiny to content-based restrictions on expressive conduct, and if so, why?  Are there good reasons to treat flag burning differently than other forms of expressive conduct? 

Questions to Consider: Class 25 will focus on the First Amendment issues raised by (a) restrictions on speech that takes place on public property, and (b) providing an overview of the different theories underlying interpretation of the Free Exercise and Establishment Clauses, 

What's problematic about the government's decision to restrict speech on its own property? To what extent do time, place, and manner restrictions alter the speaker's message, and if they do, should that matter from a constitutional perspective?

What do you see as the core purpose behind the First Amendment's Religion Clauses? Why is the freedom to practice religion something worth protecting? What exactly are the dangers inherent in the interactions between church and state? 

Questions to Consider: Class 26 will focus on (a) the rules governing challenges under the Free Exercise Clause, and (b) the application of the Free Exercise Clause to generally applicable laws that affect religious practice.

Why do you think the Court doesn't adopt a stronger standard of review for generally applicable laws in Smith? Do you think the Free Exercise Clause should require the state to grant a religious exemption for generally applicable laws (like anti-discrimination statutes)? Why or why not? What makes a law neutral and generally applicable? How is the statute in Lukumi different from the one in Smith?

Questions to Consider: Class 27 will focus on (a) the application of Smith and Church of Lukumi to laws that regulate business practices, and (b) different theories of how to interpret the Establishment Clause.

Do you think the coach's behavior in Kennedy is coercive? Do you think the school was exhibiting hostility towards religion? What do you think the Court's decision in Kennedy will mean for future Establishment Clause cases?

Based on the materials you read for today, how likely do you think it is that the current court will overrule Smith? If the Court does so, what do you think the consequences will be? How much deference should the Court give to the government's public health interests in the COVID cases? Which of the cases today do you think actually involve the "exercise" of religion? To what extent does the Free Exercise Clause protect the expression of religious belief through business practices or policies? 

Questions to Consider: Class 28 will focus on current Establishment Clause doctrine in two areas: (a) prayers as part of government activities, and (b) religious displays on public property.

What do you think a "reasonable observer" of the conduct in Kennedy or Town of Greece would conclude about the conduct at issue in each case? Do you agree with the Court's recent trend of scaling back the Establishment Clause in favor of reinforcing free exercise-related values? What do you think the Court's decision in Kennedy will mean for future Establishment Clause cases?

How should the Court decide whether a religious display on public property violates the Establishment Clause? Do you think the Court should adopt a fact-sensitive standard or a bright line rule? If you were an attorney who had to advise a client about the constitutionality of a religious display on public property, what sorts of factual questions would you want to ask?