Balkin– Con Law Fall 2025 Syllabus

Constitutional Law

Yale Law School

Syllabus

Unless otherwise noted, all page references are to drafts of Levinson, Balkin, Amar, Siegel and Rodriguez, Processes of Constitutional Decisionmaking (9th ed. , forthcoming 2026). The casebook chapters are available on Canvas. Pages within each chapter are listed by chapter and page, e.g., 1-15. Supplemental Materials are directly linked to or are available on Canvas.

We will meet regularly on Mondays and Tuesdays from 4:10pm to 6:00pm in Baker Hall, Room 124 on the first floor of Baker Hall.

We will also meet on Friday, September 5th, from 2:10pm to 4:00pm, and on Friday, September 12th, from 2:10pm to 4:00pm, also in Baker Hall, Room 124.

My regular office hours are on Tuesdays from 6:10pm to 7:10pm in Baker Hall Room 411B (On Zoom on 9/23, 11/4, 11/25, and 12/2). If that is inconvenient, you can also always e-mail me at jack.balkin@yale.edu to set up a time to meet on Zoom.

1. Introduction: Interpreting the Constitution (8/26/2025)

A. Getting to know the text

The Constitution of the United States, pp. C-3 - C-18

B. Kinds of constitutional arguments

Note on the Louisiana Purchase, pp. 2-72 - 2-76
Note on the First Bank of the United States, pp. 1-11 - 1-18

C. McCulloch v. Maryland and implied federal powers

Note on the Second Bank, pp. 1-22 - 1-24
McCulloch v. Maryland and Notes, pp. 1-24 - 1-41 (first question), 1- 51 - 1-58 (second question)
Note on Constitutional Interpretation, pp. 1-41 - 1-51

2. Judicial Review (08/29/2025)

A. The Election of 1800 and Marbury v. Madison

Note on Judicial Review before Marbury, pp. 2-26 - 2-29
The Election of 1800 and Notes, pp. 2-29 - 2-31
Note on Political Early Struggles over the Federal Judiciary, pp. 2-31 - 2-34
Stuart v. Laird and Notes, pp. 2-34 - 2-36
Marbury v. Madison and Notes, pp. 2-36 - 2-72

3. Constitutional Interpreters and Judicial Review (09/02/2025)

A. Judicial Review

Notes on Jurisdiction Stripping, Standing, and Political Questions, pp. 2-57 - 2-62
Theories of Judicial Review, pp. 2-62 - 2-71 (note Martin v. Hunter’s Lessee, pp. 2-64 - 2-65)
Note on Judicial “Good Behavior” and Lifetime Tenure, p. 2-72

B. What if the President disagrees with the Court about the meaning of the Constitution?

Andrew Jackson’s Veto Message and Notes, pp. 1-61 - 1-66
Note on Presidential Authority, pp. 1-66 - 1-68
Trump v. CASA, Supplemental Materials (on Canvas)

4. Commerce “among the several states” (09/05/2025 at 2:10pm, Baker Hall 124)

Gibbons v. Ogden and Notes, pp. 2-104 - 2-117
Note on Federal Preemption, pp. 2-117 - 2-118
Note on Interstate Federalism and the National Economy, pp. 6-166 - 6-175
Note on Internal Improvements, pp. 2-126 - 2-133

5. The Jacksonian Era and Slavery (09/08/2025)

Note on the Natural Law Tradition, Vested Rights, and Calder v. Bull, pp. 2-84 - 2-91 (Note particularly Barron v. City of Baltimore, p. 2-90)
Note on The Jacksonian Era, pp. 3-1 - 3-4 (up to fn. 9).
Note on the Federal Consensus on Slavery, p. 3-29 - 3-30
Notes and Prigg v. Pennsylvania, pp. 3-36 - 3-44
Note on the rights of Black People before the Civil War, pp. 3-44 - 3-47
Note on Prelude to Secession, pp. 3-47 - 3-49
Dred Scott v. Sandford and Notes, pp. 3-50 - 3-69
Frederick Douglass, The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery? and Notes, pp. 3-69 - 3-74

6. The Civil War and the War Power (09/09/2025)

Note and The Prize Cases, pp. 3-89 - 3-94
Note and Youngstown Sheet and Tube Co. v. Sawyer, pp. 6-176 - 6-196
Note on the War Power, pp. 6-289 - 6-300
Lincoln and the Suspension of Habeas Corpus, pp. 3-95 - 3-99
Note on the Emancipation Proclamation, pp. 3-99 - 3-103
Note on Reverence for Law, pp. 3-103 - 3-106
The Legal Tender Cases, pp. 3-112 - 3-121
Table of Justices, pp. TOJ-1 - TOJ- 15

7. Reconstruction and Reaction I– Adoption of the Reconstruction Amendments (09/12/2025 at 2:10pm, Baker Hall 124)

The Thirteenth, Fourteenth, and Fifteenth Amendments, pp. C-13 - C-14
History of the Adoption of the Reconstruction Amendments, pp. 4-1 - 4-12
Senator Howard’s Speech on the Fourteenth Amendment and Notes, pp. 4-12 - 4-24
United States v. Hall, pp. 4-24 - 4-26
Note on The Unusual Procedural History of the Fourteenth Amendment, pp. 4-26 - 4-34
Note on The Fifteenth Amendment, pp. 4-34 - 4-35
The Slaughterhouse Cases and Notes, pp. 4-35 - 4-52
United States v. Cruikshank and Notes, pp. 4-52 - 4-54
Bradwell v. Illinois and Notes, pp. 4-54 - 4-57
Note on The New Departure and Minor v. Happersett, pp. 4-57 - 4-63
Note on The Fourteenth Amendment, Birthright Citizenship, and American Indians, pp. 4-63 - 4- 66 (Compare United States v. Wong Kim Ark, p. 4-16 note 1).

8. Reconstruction and Reaction II–Equal Protection and Congress’s Enforcement Power (09/15/2025)

Strauder v. West Virginia and Notes, pp. 4-67 - 4-74
The Civil Rights Cases and Notes, pp. 4-74 - 4-89

9. Reconstruction and Reaction III– The Reconstruction Amendments and Race (09/16/2025)

Plessy v. Ferguson and Notes, pp. 4-89 - 4-101
Charles Black, the Lawfulness of the Segregation Decisions, pp. 4-101 - 4-102
Note on The Spirit of Plessy and Giles v. Harris, pp. 4-102 - 4-107

10. The Lochner Era (09/22/2025)

A. Police Powers Jurisprudence

Notes on the Rise of Due Process Protection Against State Economic Regulation, pp. 4-172 - 4-131
Note on the Application of the Bill of Rights to the States, pp. 4-131 - 4-134
Lochner v. State of New York and Notes, pp. 4-135 - 4-143
Notes on the Jurisprudence of the Lochner Era, pp. 4-143 - 4-152 (note Coppage v. Kansas, pp. 4-143 - 4-144, Jacobson v. Massachusetts, p. 4-144 - 4-146, and Muller v. Oregon, pp. 4-146 - 4-147)
Adkins v. Children’s Hospital, pp. 4-152 - 4-153

B. The Decline of Police Powers Jurisprudence

Nebbia v. New York and Notes, pp. 5-1 - 5-5
Notes and West Coast Hotel v. Parrish, pp. 5-15 - 5-17

11. The New Deal and the Emergence of the Modern Paradigm of Judicial Scrutiny (09/29/2025)

U.S. v. Carolene Products Co. and Notes, pp. 5-17 - 5-25
Williamson v. Lee Optical Co. and Notes, pp. 5-25 - 5-32

12. The New Deal Struggle and the Revolution of 1937 (09/30/2025)

A. The Court Enforces Dual Federalism

Hammer v. Dagenhart and Notes, pp. 4-165 - 4-173
Bailey v. Drexel Furniture Co. and Notes, pp. 4-173 - 4-175

B. The Court Strikes Down Early New Deal Programs

Schechter Poultry Corp. v. United States and Notes, pp. 5-33 - 5-35
Carter v. Carter Coal Co. and Notes, pp. 5-35 - 5-39
United States v. Butler and Notes, pp. 5-39 - 5-42

C. Roosevelt Responds

Franklin D. Roosevelt, Fireside Chat on the Court Packing Plan, pp. 5-43 - 5-48
NLRB v. Jones and Laughlin Steel Corp. and Notes, pp. 5-48 - 5-49
Franklin D. Roosevelt, Speech on Constitution Day, pp. 5-50 - 5-52
Table of Justices, pp. TOJ-1 - TOJ-15

13. The Emergence of the Modern Regulatory State (10/06/2025)

A. The New Deal Settlement

United States v. Darby and Notes, pp. 5-52 - 5-55
Wickard v. Filburn and Notes, pp. 5-55 - 5-57
Note on Constitutional Revolution, pp. 5-57 - 5-59
Notes on the Taxing and Spending Powers, pp. 5-59 - 5- 62

B. The Civil Rights Act of 1964

Notes on The Civil Rights Movement and the Civil Rights Act of 1964, pp. 5-69 - 5-74
Note on Congressional Power to Pass the Civil Rights Bill, pp. 5-74 - 5-76
Heart of Atlanta Motel and Katzenbach v. McClung, pp. 5-76 - 5-81

C. The Rights Revolution

Note on Incorporation of the Bill of Rights Against the States, pp. 5-62 - 5-66
The Warren Court and the Rights Revolution, 5-66 - 5-69

14. The Second Reconstruction and the Voting Rights Act (10/07/2025)

A. The Voting Rights Act of 1965

Note on the Reconstruction Power in the Civil Rights Era, pp. 5-81 - 5-82
Note on the Voting Rights Act of 1965, pp. 5-82 - 5-87
Notes and South Carolina v. Katzenbach, pp. 5-87 - 5-91
Katzenbach v. Morgan and Notes, pp. 5-91 - 5-99
Jones v. Alfred Mayer Co. and Notes, pp. 5-99 - 5-101
Oregon v. Mitchell and Notes, pp. 5-102 - 5-104

B. The Roberts Court and the Right to Vote

Shelby County, Alabama v. Holder, pp. 6-102 - 6-125
Brnovich v. Democratic National Committee, pp. 6-125 - 6-129

15. The Contemporary Debate over National Power I (10/14/2025)

A. The Commerce Power

Introduction, pp. 6-1 - 6-2
United States v. Lopez and Notes, pp. 6-3 - 6-20
U.S. v. Morrison, pp. 6-20 - 6-22
Scarborough v. United States, pp. 6-22 - 6-24
Gonzales v. Raich and Notes, pp. 6-24 - 6-29
NFIB v. Sebelius and Notes, pp. 6-29 - 6-42

B. The Taxing Power

NFIB v. Sebelius and Notes, pp. 6-42 - 6-50
Moore v. United States, pp. 6-51 - 6-53

C. The Spending Power

Note on the Spending Clause and South Dakota v. Dole, pp. 6-53 - 6-55
NFIB v. Sebelius and Notes, pp. 6-55 - 6-68

16. The Contemporary Debate over National Power II (10/20/2025)

A. Implied Limits on Federal Regulation of the States

Notes and New York v. United States, pp. 6-137- 6-139
Printz v. United States and Notes, pp. 6-139 - 6-154
Note on State Sovereign Immunity, pp. 6-154 - 6-160

B. Congressional Power to Enforce the Civil War Amendments

City of Boerne v. Flores and Notes, pp. 6-75 - 6-89
United States v. Morrison, pp. 6-89 - 6-95
Board of Trustees of the University of Alabama v. Garrett, pp. 6-96 - 6-102

17. Presidential Power (10/21/2025)

A. Presidential Appointments Requiring Senate Confirmation

Morrison v. Olson and Notes, pp. 6-196 - 6-206
Edmonds v. United States and Notes, pp. 6-206 - 6-209
Kennedy v. Braidwood Managment, Inc., pp. 6-214 - 6-215

B. Presidential Removal and Independent Federal Agencies

Morrison v. Olson and Notes, pp. 6-222 - 6-234
Seila Law LLC v. Consumer Financial Protection Bureau, pp. 6-234 - 6-258
Trump v. Wilcox, pp. 6-258 - 6-261

C. The President and the Administrative State

INS v. Chadha, 6-261 - 6-283
Note on Delegation and Deference, pp. 6-283 - 6-289

18. Presidential Privileges and Immunities (10/27/2025)

A. Executive Privilege

United States v. Nixon, pp. 6-338 - 6-349
Note on Congressional Oversight, pp. 6-349 - 6-353

B. Presidential Immunities

Note on Presidential Privileges and Immunities, pp. 6-364 - 6-367
Trump v. United States and Notes, pp. 6-382 - 6-416

C. Presidential Selection

Note on Presidential Selection, pp. 6-417 - 6-420
Trump v. Anderson and Notes, pp. 6-420 - 6-429

Optional

Trump v. Vance, pp. 6-368 - 6-382
Trump v. Mazars, pp. 6-353 - 6-364

19. Brown v. Board of Education (10/28/2025)

A. Brown v. Board of Education

Notes on the Background to the School Desegregation Case, pp. 7-1 - 7-7 (skim)
Brown v. Board of Education, Bolling v. Sharpe, and Notes, pp. 7-7 - 7-14
The Southern Manifesto and Notes, pp. 7-14 - 7-16
Brown and the Original Understanding, pp. 7-17 - 7-22
Brown II and notes, pp. 7-22 - 7-28 (skim)

20. Brown and Its Legacy (11/03/2025)

A. Brown in the Roberts Court

Parents Involved in Community Schools v. Seattle School District No. 1 and Notes, pp. 7-28-7-49

B. Anticlassification and Antisubordination

Loving v. Virginia and Notes, pp. 7-56 - 7-68
Note on the Reach of the Suspect Classification Doctrine, pp. 7-68 - 7-74

21. What Constitutes Discrimination “based on” Race? (11/10/2025)

A. Discriminatory Intention

Notes and Griggs v. Duke Power, pp. 7-76 - 7-81
Washington v. Davis and Notes, pp. 7-81 - 7-86
Village of Arlington Heights v. Metro Housing Development Corp. pp. 7-86 - 7-87
Personnel Administrator of Massachusetts v. Feeney and Notes, pp. 7-87 - 7-95

22. Affirmative Action (11/11/2025)

Notes and Regents of the University of California v. Bakke, pp. 7-95 - 7-105
Richmond v. J.A. Croson Co. and Notes, pp. 7-105 - 7-119
Grutter v. Bollinger and Notes, pp. 7-120 - 7-133
Students For Fair Admissions, Inc. v. President and Fellows of Harvard College , pp. 7-133 - 7-172

23. Sex Classifications and Sex Equality (11/17/2025)

Frontiero v. Richardson and Notes, pp. 8-3 - 8-24
United States v. Virginia and Notes, pp. 8-24 - 8-38
Geduldig v. Aiello and Notes, pp. 8-41 - 8-52
United States v. Skrmetti, pp 8-64 - 8-89

24. Other Suspect Classifications and Fundamental Rights (11/18/2025)

A. Alienage and Other Suspect Classifications

Note on Other Suspect Bases of Classification, pp. 7-179 - 7-183
Cleburne v. Cleburne Living Center and Notes, pp. 7-184 - 7-190

B. Equal Protection and Fundamental Rights

Notes and Harper v. Virginia Board of Elections, pp. 10-2 - 10-8
Note on the Right to Travel, pp. 10-8 - 10-11
Note on Protecting the Poor Through the Fourteenth Amendment, pp. 10-11 - 10-14
Dandridge v. Williams and Notes, pp. 10-14 - 10-21
San Antonio Independent School District v. Rodriguez and Notes, pp. 10-21 - 10-35
Note on the Enforceability of Positive Rights, pp. 10-41 - 10-47

25. Modern Substantive Due Process: “Privacy,” Sexual Autonomy or Tradition? (11/24/2025)

A. Reproductive Freedom

Historical Roots of Fundamental Rights Adjudication, pp. 9-1 - 9-9
Griswold v. Connecticut and Notes, pp. 9-9 - 9-27
Note on The Reach of Griswold, pp. 9-27 - 9-29

B. Sexual Orientation

Introduction, pp. 9-88 - 9-90
Bowers v. Hardwick and Notes, pp. 9-90 - 9-97
Notes and Lawrence v. Texas and Notes, pp. 9-97 - 9-115
Note on Same Sex Marriage, pp. 9-115 - 9-120
Obergefell v. Hodges and Notes, pp. 9-120 - 9-143
Note on Equality Reasoning in LGB Cases, pp 9-143 - 9-146

26. Abortion and Sex Discrimination (11/25/2025)

Roe v. Wade and Notes, pp. 9-29 - 9-33
Casey v. Planned Parenthood of Southeastern Pennsylvania, pp. 9-33 - 9-43
Dobbs v. Jackson Women’s Health Organization 9-43 - 9-87
Balkin, Roe v. Wade: An Engine of Controversy (on Canvas)(optional)

27. The Second Amendment (12/01/2025)

District of Columbia v. Heller and Notes, pp. 9-150 - 9-161
New York State Rifle and Pistol Association, Inc. v. Bruen and Notes, pp. 9-161 - 9-167
United States v. Rahimi and Notes, pp. 9-167 - 9-189