American Constitutional Law (GOV 1510)

Professor Richard Fallon

Fall 2015
Assigned Books
Most of the assigned readings for this course come from a law school casebook edited by
Jesse H. Choper et al., Constitutional Law (12th ed. 2015) (hereinafter CB). Another book that
appears frequently on this syllabus is Richard H. Fallon, Jr., The Dynamic Constitution (2d. ed.
2013) (hereinafter Fallon). You may want to consider purchasing these books, especially the
casebook (though a number of copies will be on reserve in the Library).
A number of assignments also include material from other books and law review articles.
In nearly every case, links to these materials are available on the course website.
Why This Course Is a General Education Course
American constitutional law is an argumentative practice. Lawyers and judges
notoriously argue about how particular cases should be resolvedfor example, about whether
there are or should be protected rights to abortion, to gay marriage, and to possession of certain
kinds of weapons for self-defense. In this course, we will look closely at contemporary
constitutional law and the historical processes through which it has emerged. We will, for
example, study currently recognized rights to freedom of speech, bodily self-determination, and
the equal protection of the laws. But our principal perspective will be normative, concerned with
what courts ought to do, along several dimensions.
One recurring theme will involve how, methodologically, courts ought to interpret the
Constitution. For example, what significance should they accord to the original understanding
or original public meaning of constitutional language, and why? Should courts strive selfconsciously to develop the morally best interpretation of the Constitution, or is it unfair for
judges and Justices to impose their moral views when those views diverge from those of political
majorities of the American public?
A second theme will involve how lawyers do and ought to argue about contentious moral
issues, and how courts ought to resolve them, to the extent that such issues are indissolubly
interconnected with legal issues. For example, if it is impossible to judge whether affirmative
action is constitutional without also considering whether it is unfair or violates moral norms of
fair treatment, then what are the pertinent moral arguments, and how should they be appraised?
A third theme will involve the relationship between legal norms and moral norms.
Sometimes moral norms may appropriately influence interpretive judgments about the
constitutional rights that people have. But sometimes it may be morally right, or at least
arguable, that judges should do what the law requires even when its requirements diverge from
their moral beliefs. And occasionally it is argued that judges have compelling moral reasons to
take actions that could not be justified strictly as a matter of law.
1

The courses themes will not be wholly concerned with ethical reasoningfar from it.
This is a course about law, and a concern will involve the distinction between legal and moral
argument and the respects in which the requirements of distinctively legal argument constrain,
transform, and sometimes even exclude purely moral argument. But even when constitutional
argument diverges most from purely moral and ethical argument, the relationship between the
two will never be far from sight.
Course Organization: Lecture and Sections
Twice-weekly lectures will occur on Tuesday and Thursday afternoons from 1-2:30p.m.
In addition, students are required to attend weekly section meetings, at times to be arranged.
Attendance at sections is mandatory. Unexcused absences will be taken into account in
assigning grades for section performance (as further explained below).
Written Work Requirements and Grading
Grades will be based on performance in sections, including weekly written questions to
be submitted to the Teaching Fellows in advance of section meetings; two papers of 1,500 to
2,000 words each; and a final exam.
(1) For each weekly section meeting, students will be required to prepare two or three
short written questions that they think merit discussion, with a brief statement of why they think
the questions important, and to submit those questions by email to the Teaching Fellow
responsible for their section not later than 6 p.m. on the day before the section meeting. Each
student may opt not to submit written questions for any three weeks of his or her choosing.
Twenty percent (20%) of your grade for the course will be based on performance in sections,
including the weekly questions. Late papers will not count toward the course requirement unless
tardy submission is approved in advance by the responsible Teaching Fellow.
(2) Students in the course will also need to write two papers of 1,500 to 2,000 words in
length, each of which will count for 25% of your course grade. Topics for papers will be
assigned, but students may instead elect to write on other topics, provided that those topics are
approved in advance by the Teaching Fellow for your section. The two required papers will be
due on October 15 and November 24. Late papers will be penalized 1/3 of a letter grade (for
example, reduced from a B+ to a B) for each day by which they are tardy.
(3) There will be a final exam that will count for 30% of your grade for the course. Any
student needing academic adjustments or accommodations is requested to present a letter from
the Accessible Education Office (AEO) and speak with the professor by the end of the second
week of the term. All discussions will remain confidential, although AEO may be consulted to
discuss appropriate implementation.
In Case of Illness or Emergency
Rules applicable to missed sections and late papers are subject to exceptions for cases of
2

illness and emergency. The granting of excuses for non-attendance at section meetings and
delayed submission of weekly short papers will be in the discretion of the Teaching Fellow
assigned to each section. Extensions with respect to the longer papers will be in the discretion of
the section Teaching Fellow, subject to the approval of the Head Teaching Fellow for the course.
Academic Integrity Policies
Although students are of course free to discuss any of the issues or themes in the course
with anyone, any collaboration on written work is strictly forbidden, as are plagiarism and
academic dishonesty of any kind. Students who draw on published or unpublished written
sources in the development of the argument in their papers must identify their reliance on such
sources, either in text or in footnotes.
Classroom Etiquette
Once class begins, please stay in your seats unless you have an important reason not to do
so. Movement and departures during class are distracting both to other students and to me.
Harvard Law School Conflict of Interest Policy
Professor Fallons faculty webpage on the Harvard Law School website has a link to his
Harvard Law School Conflict of Interest Report, which describes any matters on which he has
worked (other than in a strictly academic capacity) that relate to the topics covered in this course.
Professor Fallons Office Hours
Professor Fallon will normally be available to answer questions in the classroom
immediately at the end of lectures. His scheduled office hours are Monday 4 to 5 p.m. and
Thursday 5 to 6 p.m. in 330 Areeda Hall. Drop-ins are welcome, but priority will be given to
students who make appointments in advance. You can make an appointment by contacting
either Professor Fallon (rfallon@law.harvard.edu) or his assistant Carol Bateson
(cbateson@law.harvard.edu). If you cannot attend the scheduled office hours, Professor Fallon
will endeavor to make other arrangements.
Schedule of Assignments
There are 26 scheduled meetings of the class and, accordingly, 26 listed assignments.
Please prepare the assignment for each class before coming to class.
I. A General Introduction to Constitutional Law
September 3 Assignment #1: Foundations
U.S. Constitution, CB App. B 1813-29; Fallon xix-xxx, 1-12,
24-36; Antonin Scalia, Originalism: The Lesser Evil,
57 U. Cin. L. Rev. 849-65 (1989) (link on website); Ronald Dworkin,
Freedoms Law 1-15 (1996) (website)
3

II. Substantive Introduction and Methodological Prelude: Race and the Constitution
September 8 Assignment #2: Historical and Doctrinal Background
CB 1351-76; Fallon 152-55
September 10 Assignment #3: The Modern Era
Fallon, 159-69; CB 1376-93; Cass R. Sunstein, Black on Brown, 90 Va. L. Rev.
1649-65 (2004) (link on website)
September 15 Assignment #4: Browns Aftermath and Legacy
CB 1393-1411; David R. Bernstein & Ilya Somin, Judicial Power and Civil
Rights Reconsidered, 114 Yale L.J. 591, 593-98, 645-57 (2004)
(link on website)
III. Historical Foundations of Judicial and Congressional Power
September 17 Assignment #5: The Constitution in the Era of John Marshall
Fallon 12-24; CB 1-9, 71-78, 164-165 (McCulloch), 361-65
September 22 Assignment #6: Introduction to Congresss Commerce Power
Fallon 227-38; CB 87-104 (Wickard), 106-10; Lawrence B. Solum, District
of Columbia v. Heller and Originalism, 103 Nw. U. L. Rev. 923, 927-30,
933-37 (2009) (link on website)
September 24 Assignment #7: More Recent Doctrine and Issues
CB 110-27, 132-39; Fallon 238-45
September 29 Assignment #8: More Recent Developments, Including National Health
Insurance
CB 139-45, 152-60; Fallon 245-51; Randy E. Barnett, No
Small Feat: Who Won the Health Care Case (And Why Did So Many Law
Professors Miss the Boat?), 65 Fla. L. Rev. 1331-50 (2013)
(link on website)
IV. The Freedom of Speech
October 1 Assignment #9: Foundational Cases: The Advocacy of Illegal Action
4

Fallon 41-54; CB 637-64

October 6 Assignment #10: The Emergence of the Modern Law
CB 680-88; 694-702 (note 3); 715-23
October 8 Assignment #11: Content Neutrality
Content Neutrality (pdf available on website); CB 842-48;
Fallon 54-59
October 13 Assignment #12: Unprotected Categories, Including Obscenity
Fallon 59-62; CB 775-78 (Chaplinsky), 750-71, 800-815
October 15 Assignment #13: Corporate Speech and Increasing First Amendment
Absolutism
Fallon 63-66; CB 894-902 (note 2), 910 (Central Hudson)-18 (note 2), 826-33;
John C. Coates IV, Corporate Speech and the First Amendment: History,
Data, and Implications,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2566785, pp. 1-2,
19-24 (link on website)
October 20 Assignment #14: Campaign Finance Regulation, Part I
CB 1171-88 (note 6), 1190-1202 (note 5); Kathleen M. Sullivan, Political Money
and Freedom of Speech, 30 U.C. Davis L. Rev. 663, 665-67, 671-87
(1996) (link on website)
October 22 Assignment #15: Campaign Finance Regulation, Part II
Expanded excerpts from Justice Stevenss Citizens United Dissent (pdf
on website); Dan M. Kahan, Neutral Principles, Motivated
Cognition, and Some Problems for Constitutional Law, 125 Harv. L.
Rev. 1, 4-9, 19-30, 72-77 (2011) (link on website); Kathleen M. Sullivan,
Two Concepts of Freedom of Speech, 124 Harv. L. Rev. 143, 155-63,
167-75 (2010) (link on website)
V. The Equal Protection of the Laws
October 27 Assignment #16: Historical Background
Fallon 101-24; CB 361-83, 387-97
October 29 Assignment #17: Rational Basis Review
5

Fallon 149-59, 169-71; CB 1331-43, 1348-50, 1411-21; Thomas B. Colby

& Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 257,
527-533, 558-78
November 3 Assignment #18: Affirmative Action, Part I
Fallon 171-79; CB 1432-58
November 5 Assignment #19: Affirmative Action, Part II
CB 1458-64 (note 2), 1469-71, 1399-1409 (reprise)
November 10 Assignment #20: Gender
Fallon 179-84; CB 1476-1513
VI. Fundamental Rights
November 12 Assignment #21: Foundational Cases on Rights of Privacy (or Sexual
Autonomy?)
Fallon 191-96, 207-14; CB 427-59
November 17 Assignment #22: Post-Roe Developments
CB 465 (Webster)-500
November 19 Assignment #23: Gay Rights, Part I
CB 537-47, 1513-22, 547-64 (note 9); Fallon 184-88
November 24 - Assignment #24: Gay Rights, Part II, and the Carolene Products Footnote
Obergefell v. Hodges (pdf on website); CB 1538-51; Fallon 188-89
December 1 Assignment #25: The Second Amendment Right to Keep and Bear Arms
CB 575-95; Fallon 143-47; Richard A. Posner, In Defense of Looseness: The
Supreme Court and Gun Control, The New Republic, Aug. 27, 2008
VII. Concluding Themes
December 3 Assignment #26: Judicial Review in a Democracy, Revisited
Fallon 275-97, 353-62; Jeremy Waldron, The Core of the Case Against
6

Judicial Review, 115 Yale L.J. 1346, 1346-86 (2006)