Con Law I Fall 2023 Syllabus

"Studying the Constitution has some of the same intellectual delight as reading Aristotle: it opens the mind on a subject of first importance." --Prof. Michael McConnell

Richard F. Duncan: Room 220 Law,
email:rduncan2@unl.edu [cell phone--to be provided directly]

Free Speech and Academic Freedom: At UNL Law (and in this class) we strictly respect the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this class and is possessed by faculty and students alike. There is no thought or language policing in this College of Law and in this classroom. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. Of course, everyone should expect to have their arguments subjected to civil debate and push back. Be prepared to defend your arguments when they are challenged.  We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds. In the words of Justice Gorsuch, "learning how to tolerate speech or prayer of all kinds is 'part of learning how to live in a pluralistic society,' a trait of character essential to "a tolerant citizenry.'"

General Information: This class will meet on Monday, Tuesday and Wednesday from 1:30 to 2:30 PM. Notice that this class meets for 60-minutes per class.  Therefore, we will meet 35 times (as opposed to the 42-class sessions for a 50-minute class). Moreover, the video lectures I am assigning will allow us to cancel an additional 3-4 in-person meetings. This will allow us to cancel ten (10 or 11) classes during the Semester without the need for make-up sessions. Three of our class cancellations will be during the week of September 18, 19 & 20. I may also have to cancel a week of classes because I have to review (in person) an untenured professor's classes as part of his teaching review committee. I will also consult with the class to see what other dates (perhaps the last week of class?) would be good ones to cancel class.

Office Hours: Regular office hours are in the lobby in front of the library immediately after every class. I will also give you my cell phone number and we can always arrange for a phone call. Please do not hesitate to text or email me to set up a phone call.I work mostly from home, and I am happy to chat on the phone, whether to answer questions or discuss property.

 

 If You Are Censored or Cancelled: One of my obligations to my students is to make sure their First Amendment rights are respected and protected here in the Law College. If you are the victim of censorship, whether based upon something you said on campus or off campus, I am always available to talk with you about it. You have strong First Amendment rights. And the Law College has made a commitment to diversity, inclusion, free speech, and community which should transcend ideological differences. 

Pro tip: if you are ever called into an administrator's office based upon something you said, you should record the meeting to ensure that you have an accurate account of what you supposedly said, what the complaint against you is, and why the administrator believes your speech needs correction. Be polite, but also be courageous. Ask the Administrator about the Free Speech Clause and how it applies to state universities. Students have powerful free speech rights, and an accurate record may prove to be of critical importance to protecting your constitutional rights.

Attendance Policy: Attendance is required.

 

Grading: Your grade for the course will be based 100% on your score on the Final Exam. The Final Exam will consist of both objective (multiple choice or true-false) questions and one or two essay questions. The Final will be in person, and closed book/no internet.

Books: Varat & Amar, Constitutional Law (16th Edition)(Foundation Press 2021); and Paulsen & Paulsen, The Constitution: An Introduction (2015)

You should read chapters 1 to 7 of the Paulsen book. Although we won't be discussing it in class as a general rule, it is an excellent introduction and overview of the entirety of constitutional law. You should try to read 20 to 30 pages a day either shortly before the course begins or during the first couple of weeks of the course. Chapters 1-3 will be very helpful to your understanding of the issues we will be discussing in the first few weeks of the class.

I checked on both Amazon and ebay and there are many used copies of the Paulsen book available for only a few dollars. Just a tip for the cost conscious law student.

Online Materials: Professor William Linder's Exploring Constitutional Law (Fixed Link)

Be sure to check this blog every day for announcements, additional required and optional reading, and discussion of cases and issues raised in the reading.

                                       First Thoughts

Consider this observation from Prof. Thomas R. Dye:

All governments, even democratic governments, are dangerous. They wield coercive power over the whole of society. They tax, penalize, punish, limit, confine, order, direct, and regulate. They seize property, restrict freedom, and even take lives, all under the claim of legitimacy.

The primary  purpose of this course is to consider the many ways the Constitution establishes, limits and checks the power of government, and to appreciate the many ways the Constitution was designed to protect  liberty, both through structural safeguards, such as separation of powers and federalism, as well as through specific protections of individual liberty.

Assignments: Fall 20123 (we will normally cover 2 full assignment each week)

Note: These assignments may be adjusted as we progress through the course.

Here is a link to the text of the Constitution of the United States

I will also provide links to several Supreme Court oral arguments for us to listen to and discuss. Watch for the links on the blog from  time to time.


1 Casebook p. 3-27(skim as background reading); p.29-41

2 Casebook p.41-50; Handout on Moore v Harper (PDF to be emailed to you)

3 Originalism vs. the "Living Constitution": Strauss article (link); Sollum Article (link)

4. Slavery Under the Constitution of 1787: Paulsen Book chapter 4 (p. 73-89)

5 Two Classes: Casebook p.51-84; Discussion of 303 Creative v Elenis and Imminent Injury Analysis

 6-7Two Classes: Casebook p.84-112

8-9  Two Classes: Federalism Electoral Votes, Equal Representation in the Senate and The Seventeenth Amendment: Read Suzanna Sherry, Our Unconstitutional Senate, 12 Constitutional Commentary 213-215 (1995) [available to print out at Hein Online];  Zywickie-Somin Debate on Repeal of the Seventeenth Amendment (link);Duncan, Electoral  Votes, the Senate, and Article V: How the Architecture of the  Constitution Promotes Federalism and Government by Consensus (link); Chiafalo v. Washington (Justice Kagan's majority opinion only) Link

10. Casebook p. 115-136

11. Casebook p. 136-160; Wickard (link)  

12. Casebook p. 160-183

13. Casebook p 183-199

14. Casebook p. 199-217; South Dakota v. Dole (link); Rotunda, The Spending Clause (link)

15. Casebook p. 235-268  

16. Real Federalism Handout (PDF materials will be emailed to you)

17. Casebook p. 351-356; 367--370; Paulsen book p. 312-317

18. Nondelgation Doctrine Handout (PDF materials will be emailed to you); casebook p.379-394

19. Major Questions Doctrine:  Biden v. Nebraska (student loan forgiveness case) (link to be provided)

20. "This wolf comes as a wolf"--Casebook p. 394-415

21. Pre-Civil-War State of Liberty: casebook p. 437-446 

22. State Action Doctrine (3 classes) P. 1133-1173

[23 and beyond-- this is the first time I have taught Con Law I without a fairly deep dive into the 14th Amendment--so, I am not sure what to add here. Maybe a brief survey of equal protection; maybe a focus on recent important cases. Are there cases you would like to consider? We will discuss this.]

End of My (Duncan's) Syllabus: Now For Something Completely Different

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                             "Learning Outcomes"

Basically, I am old school about "learning outcomes." This is law school, not community college, so our major focus is on developing a sophisticated legal intellect by careful legal analysis of cases, statutes and written texts, and hypotheticals. Every day my job is to try to make the assignments and class discussions as challenging, clear, lucid and helpful as I can. Your job is to prepare for class, pay careful attention in class, participate in class discussions, and master the materials, questions, concepts, and issues we cover. Your individual outcomes depend in large part on how much effort you put into studying and class discussions. All of this being said, here are the "learning outcomes" for this course. If you work hard to master the course, you will:

(1) acquire a deep understanding of the US Constitution including judicial review, separation of powers, federalism, the structural protection of liberty in the Constitution, and much more.

(2) develop a deep understanding of Supreme Court case law interpreting the Constitution, including important dissenting and concurring opinions in landmark cases

(3)  master the elements of the constitutional doctrines covered in the course

(4)  be able to apply those doctrines to existing and new hypothetical circumstances

(5)  make intelligent and persuasive legal arguments for different possible outcomes in those circumstances

(6)  be able to explain how different interpretive philosophies or forms of constitutional argument might cause different Justices to reach different outcomes on the same circumstances (for example, how "originalist" and "living constitutionalist" Justices might approach issues that come before the Court)

(7) become familiar with the political forces and policy rationales that shape constitutional law

The primary means of assessing these outcomes is your self-assessment during and after each class. You should evaluate what you learned in each class when you review your notes and thoughts from each class.

Volunteering for discussion during class is also an excellent means of assessment. 

The final exam is, as always, the more formal method of assessing many of these outcomes.


A Message From The Dean, A Message From The Dean

"If you think you will need any disability-related accommodation to succeed in this class, please contact Assistant Dean Marc Pearce and/or the Office of Services for Students with Disabilities as soon as possible for a confidential conversation."