Columbian College of Arts and Sciences

Course Number: PPPA 2000-10	Semester:	Fall 2022

CRN 73329

Course Title:	Justice and the Legal System 1: Constitutional Law for the 21st Century

Meeting Time/Place:	Monday and Wednesday from 12:45 PM to 2:00 PM

MPA 302

Instructor: Professor Jill F. Kasle

Media and Public Affairs Building, Room 604

(202) 994-8213 - kasle@gwu.edu

“What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election [citation omitted] the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.” Justice John Paul Stevens, dissenting in Bush v. Gore, 531 U.S. 98,129 (2000). (emphasis added)

“Befuddling someone is not convincing them. That’s an important lesson. In life, sometimes you can get someplace by befuddling people, but it’s not a good long-run strategy. Much better to be able to get to the right answer and be able to explain why it’s the right answer.” Sharon Oster, an economist at the Yale School of Management, quoted in the New York Times, Wednesday, June 15, 2022, p. B15.

“I have learned much from my teachers, more from my colleagues, and the most from my students.” Rabbi Hanninah, Talmud, Taanit 7b. Quarterly newsletter of the Center for the Study of Law and Religion, Emory University, Spring 2021

I. Introduction to the Course

The Constitution is all around us. We meet in a classroom that is integrated by race, gender, national original, religion, and ability, among other things, thanks to Supreme Court decisions interpreting the Constitution. Some of you may have grown up with same-sex parents or voted in your first Presidential election in November 2020 or traveled to Washington, D.C., on a passport that was granted without regard to your political views; all these rights are either listed in the Constitution or derived from its language. You will have the freedom to speak in this class and I will have the freedom to teach in this class without fear that the government might shut us down for what we say; for that, we can thank the First Amendment.

By the summer of 2022, the Constitution was the basis for some of the most important work of all three branches of government:

Pursuant to its authority under Article I of the Constitution, the Select Committee to Investigate the January 6 Attack on the United States Capitol, a committee created by Congress, held a series of hearings where witnesses described in devastating detail Donald Trump’s efforts to interfere with the Constitutionally prescribed method for certifying an election.

Pursuant to its authority under Article II of the Constitution, the Justice Department, part of the Executive Branch, announced an ongoing investigation into the question of how far can a President go in his efforts to overturn the results of an election before he commits a crime.

Pursuant to its authority under Article III of the Constitution, the Supreme Court issued a series of decisions interpreting the language (or the absence of language) in the Constitution.

What will I learn in this course?

This is a law school course in constitutional law that has been adapted for undergraduates. You will learn both substantive content and practical skills:

You will learn the foundational principles of the American legal system—including the rule of law and the importance of precedent—and you will learn legal language.

You will learn to read Supreme Court opinions closely and analyze legal arguments.

You will develop your ability to write in a brief and clear style.

You will get a preview of law school.

The course will be demanding, challenging, frustrating, and deeply rewarding.

What are the course objectives?

In this course, we will study the Constitution as a blueprint of government and as a source of fundamental rights. Accordingly, one course objective is to help you develop an appreciation for the Constitution.

Another course objective is to help you understand how the Supreme Court does its job.

The ability to write well is essential. In this class, you will write short legal opinions that will give you practice in a significant course objective: learning to write in a brief and clear style.

The ability to analyze complex material is a necessary skill for this course and, indeed, for all your courses. Accordingly, you will have many opportunities to develop your analytic thinking.

In the current political climate, the Constitution is often talked about—and often talked about incorrectly. I want you to be able to talk about the Constitution correctly.

You will come to understand that constitutional law—indeed, all of law—is composed of stories about people.

Are there prerequisites for this course?

This course is different from every other course you have ever taken. Unless you already have a law degree (which seems unlikely), nothing in your past educational career has prepared you for this course. As a result, students often find themselves lost in the first few weeks of the course. Fear not: you will catch on. A good rule of thumb: it takes about six weeks to get the hang of the course.

Who teaches the course? Is she nice?

The professor in the course is Jill F. Kasle. Professor Kasle earned bachelor’s and master’s degrees from Northwestern University and a law degree from Boston University. In her professional life, she has done almost everything that a lawyer can do except become a judge and get indicted. Her proudest academic achievement is membership in Phi Beta Kappa. More than anything, Professor Kasle want to help you learn and be successful in this class. Her approach to the class is a lot like Professor McGonagall’s approach to her Transfiguration classes at Hogwarts School of Witchcraft and Wizardry with occasional touches of Professor Snape. (For those who don’t understand the references, see the Harry Potter books.)

Meeting with the professor

If history is any guide, there will be times in this course when you will feel utterly lost. At those moments, I encourage you to make an appointment to meet with me so we can untangle the knots.

I do not hold formal office hours but I will be happy to make an appointment to meet with you at almost any mutually convenient time. To make an appointment, send me your availability and I will get back to you as soon as possible with a meeting day and time. While in-person meetings are certainly possible, I am anticipating twice as many students as usual this semester so it will probably be most efficient to hold the meetings over zoom. Here is the link: https://gwu-edu.zoom.us/j/93182894234?pwd=V2ZrM1ZXM3VXS3Z0UzlrZVZub1pjQT09

Sometimes students feel uncomfortable asking me questions – they don’t want me to know that they’re confused. Fortunately, this class has three secret weapons for dealing with this very situation: my student helpers Kelsey Marx, Elizabeth (Lizzie) Hahn, and Rahul Kothari. Kelsey and Rahul are juniors; Lizzie is a sophomore. All three took the class as freshmen, all three struggled in the beginning, and all three emerged triumphant at the end of the class.

When you go to Kelsey or Lizzie or Rahul for help, they will let me know that a student has come to them for help but they will never tell me the name of the student who sought their help. So your visits are completely anonymous as far as I’m concerned. Kelsey’s email is marx@gwu.edu, Lizzie’s email is elizabethhahn@gwu.edu, and Rahul’s email is rahulkothari@gwu.edu.

We also have a secret weapon for students who need help with their writing: Zach Benzaoui (zbenzaoui@gwu.edu) is a tutor at the University Writing Center. Zach, a junior, took the class two years ago. He’s a wonderful writer and, perhaps more to the point, he knows me and what I’m looking for in your writing. I encourage you to get in touch with Zach early in the semester if you feel that your writing might need a tune-up.

Tip: if you make an appointment with Kelsey or Lizzie or Rahul or Zach or me, please keep the appointment. If you must cancel, send an email cancelling the appointment – you do not need to give a reason for the cancellation. Do not ghost us – ghosting will have a negative effect on your standing in the class.

Communicating with the professor

I try my best to respond to student emails within 24 hours and I would appreciate your doing the same with my emails to you.

Is it true that most students get an A in this class?

Yes.

Really?

Really. Work with me (instead of against me) and you will do fine.

OK, so how do I get an A in this class?

Come to class

Do the homework

Meet all the deadlines

Answer the questions that I ask in class

Write well

Make good use of the abundant help that is offered in this class

II. Grading Percentages and Assessments

Participation credit	25%

Midterm (Supreme Court opinion) 25%

Final Exam (Supreme Court opinion) 50%

Extra credit opportunity: Supreme Court “visit” and “What I Learned” paper

Participation Credit: The readings in this class are court opinions. Before each class, please read the assigned cases and prepare a case abstract for each case (more about case abstracts during our first class). When you come to class, I will employ the time-honored law school technique of cold calling, i.e., I will randomly call on students and ask questions about the assigned reading. The answers to my questions will be in your case abstracts. You earn participation credit by answering the questions. There is only one wrong answer to any of my questions: “I don’t know.” If I ask you a question and your response is “I don’t know”, you are telling me that you haven’t read the case and you’re working against me (see above).

Midterm: In this class (and in law school), we use what are called fact pattern exams. A fact pattern, also known as a hypo (short for “hypothetical”), presents an invented legal case that students, acting as Supreme Court Justices, decide. Your midterm will be a hypo. Here is a typical hypo:

“In July 2021, Good Weather University (GWU), a fine institution of higher learning in Washington, DC, established a mandatory vaccination policy for all students, faculty, and staff to combat the spread of the Delta variant of COVID, as follows:

“All students, faculty, and staff must have at least the first vaccination shot against COVID before arriving on campus for the Fall 2021 semester and must have the second shot within 30 days of arriving on campus. Students who live in Florida, Texas, Louisiana, Alabama, and Missouri (states with excessively high rates of COVID cases, including hospitalizations and deaths) must have both shots before arriving on campus. Students who fail to follow this policy will not be able to access campus buildings (including their residence halls).”

John Smith is a resident of Miami, Florida. John is a rising junior at Good Weather University. John, who is 23 years old, took time off after high school and joined the Florida National Guard. For the past few weeks, John has been with his Guard unit on an emergency basis helping to evacuate Americans from Kabul, Afghanistan.

John had planned to get his first COVID vaccination before returning to GWU in August but the situation in Kabul is so dire that he will barely have time to get back to Florida, pack, and make it to campus before classes start on August 30.

John’s GWorld card won’t work if he arrives on campus unvaccinated. So John authorizes his lawyer to file a request for an injunction against GWU’s vaccination policy in Federal District Court in Miami. The District Court finds in favor of John but the Court of Appeals reverses and finds in favor of GWU. What result in the Supreme Court?”

Here is the outline of the answer:

“The issue in the case is the following: Is Good Weather University’s vaccine mandate legal? The holding is [give the holding]. The Supreme Court finds in favor us [state who wins].

The standard of review in this case is [give the standard of review]. When applying this standard of review, the Court will ask [state the questions that are part of the chosen standard of review]. In this case, [apply the standard of review].

The Court relies for its decision in this case on the precedent case of [give the name of the precedent case]. In that case, the Court wrote [give the relevant holding from the precedent case]. We apply that precedent case here by [describe how the Court uses the precedent case to decide the current case].”

Final Exam: Write the opinion in Students for Fair Admissions v. Harvard, a case about affirmative action that has been set down for argument in the Supreme Court’s 2022-2023 Term.

Extra Credit: We will discuss the extra credit opportunities in class.

Tip: I strongly discourage you from using the internet in this course. Here’s why:

If you lift material from the Internet and use that material on any written work in this course, you’ve committed plagiarism.

There’s a lot of writing about the law online. Some of the writing is good, some of the writing is bad, and some of the writing is just plain wrong. Problem: you won’t know the difference. You’re new to the study of law so you don’t yet have the ability to discern accurate legal writing from inaccurate legal writing. Suppose you lift something from the internet that’s wrong and put that material on your paper. What do you suppose the result will be? (See above where reference is made to Professor Snape.)

Some phrases in the law—such as standard of review, which we talk about a lot in this course--have two meanings. If you go online to find the definition of standard of review, you could easily find the “wrong” definition but, again, you’re new to the study of law so you won’t know that the definition you’ve taken from the internet is the wrong one. Result: a low grade on an exam.

III. Readings

The Syllabus

Monday, August 29

Please read the syllabus before class

Introduction to the Study of Constitutional Law

Wednesday, August 31

"How to Read a Legal Opinion" by Orin Kerr

(click on the title to access the readings on this syllabus)

Monday, September 5 – No Class (Labor Day)

Wednesday, September 7

South Bay United Pentecostal Church v. Newsom 1 (May 2020)
South Bay United Pentecostal Church v. Newsom 2 (Feb. 2021)

Foundational Material

Monday, September 12, and Wednesday, September 14

The Constitution and Marbury v. Madison

Contemporary Cases in Constitutional Law - Our discussion of contemporary cases begins with material related to the end of the Trump presidency and continues with several cases that the Supreme Court decided in June 2022.

Monday, September 19, and Wednesday, September 21 – Executive Privilege

U.S. v. Nixon (precedent for two following cases)

Trump v. Thompson 20 F. 4th 10 (2021)

Trump v. Thompson 595 U.S. ___ (January 19, 2022)

Monday, September 26, and Wednesday, September 28 – Gun Rights

DC v. Heller

McDonald v. City of Chicago

New York State Rifle & Pistol Association v. Bruen

Monday, October 3, and Wednesday, October 5 – Abortion Rights

Roe v. Wade

Planned Parenthood v. Casey

Dobbs v. Jackson Women’s Health Organization

Monday, October 10, and Wednesday, October 12 – Climate Change

West Virginia v. Environmental Protection Agency

Monday, October 17, and Wednesday, October 19 – Review for Midterm

MIDTERM DUE SATURDAY, OCTOBER 22, AT 12:00 NOON

Monday, October 24 – No Class (Fall Break)

Wednesday, October 26 – Discussion of Midterm

Monday, October 31, and Wednesday, November 2 – Election Integrity

Moore v. Harper

Monday, 7, and Wednesday, November 9 – Affirmative Action

Grutter v. University of Michigan

Students for Fair Admissions v. President and Fellows of Harvard College

IV. Historical Cases

The list of cases that follows comes from a syllabus prepared by Professor Douglas Linder of the University of Missouri School of Law and is freely and intentionally made available to all via the Internet.

The “Big Three”

Marbury v. Madison

Background

Opinion

McCulloch v. Maryland

Background

Opinion

Gibbons v. Ogden

Background

Opinion

Separation of Powers

Youngstown Sheet & Tube v. Sawyer

Background

Opinion

Dellums v. Bush

Bush v. Gore

The National Commerce Power

U.S. v. Lochner

U.S. v. Lopez

Background

Opinion

U.S. v. Morrison

Background

Opinion

Due Process

Protection of Economic Interests

Lochner v. New York

Opinion

Nebbia v. New York

Opinion

Protection of Individual Rights

The Right to Privacy

Griswold v. Connecticut

Background

Opinion

The Right to Marry

Loving v. Virginia

U.S. v. Windsor – Justice Kennedy’s opinion and Justice Scalia’s dissent

Obergefell v. Hodges

The Right to Abortion

Roe v. Wade (start at V)

Planned Parenthood v. Casey

Background

Opinion

The Right to Choice in Sexual Matters

Lawrence v. Texas

Background

Opinion

Equal Protection

Discrimination on the basis of “safety”

Railway Express Agency v. New York

Background

Opinion

Discrimination on the basis of race and ethnic ancestry

Plessy v. Ferguson

Background

Opinion

Brown v. Board of Education

Opinion

Discrimination on the basis of gender

Craig v. Boren

Background

Opinion

V. Miscellaneous but Extremely Important Material

University Policy on Religious Holidays

Students should notify me in writing during the first week of the semester of their intention to be absent from class on their day(s) of religious observance. If you tell me orally that you plan to be absent from class to observe a religious holiday, chances are good that I won’t remember and I’ll wonder why you’re not in class. Absence from class for the observance of religious holidays is an absence without penalty.

University Counseling Center (UCC)

Any student who may need assistance addressing personal, social, career, or academic problems should contact the University Counseling Center at (202) 994-5300. The Center is located on the ground floor of the Marvin Center. The Center offers a variety of services including crisis and emergency mental health consultations, confidential assessment, counseling services (individual and small group), and referrals. For more information, go to http://counselingcenter.gwu.edu.

Average Minimum Amount of Out-of-Class or Independent Learning Expected per Week

In a 15-week semester, including exam week, students are expected to spend a minimum of 100 minutes of out-of-class work for every 50 minutes of direct instruction for a minimum total of 2.5 hours of instruction/study per week. A 3-credit course should include 2.5 hours of direct instruction and a minimum of 5 hours of independent learning, totaling a minimum of 7.5 hours of instruction/study per week. More information about GW’s credit hour policy can be found at provost.gwu.edu/policies- forms (webpage); or provost.gwu.edu/files/downloads/Resources/Assignment-Credit-Hours-7-2016.pdf (form).]