Constitutional Law Education Project
    4418 Water Oak Ct. Concord, CA. 94521  (925) 338-1858           

To:            Teachers of Constitutional Law in high school

From:       Rich Kitchens, Director, Constitutional Law Education Project (CLEP) ( (Email us at:

Sub:          Newsletter #705 (December 16, 2017)  


View a DAILY version of this newsletter by visiting our blog:  There we post each day’s articles that eventually makes up this weekly newsletter.

For Rich Kitchens’ legal blog regarding California education law, go to:

This is an FREE newsletter for the teachers of Constitutional Law and others interested in law-related education to high school students. Currently, it goes out to about 300 teachers. It is organized to suggest strategies in each of the six units in the Constitutional Law (version 5.04) text. Of course, you can use any of this information without our textbook as well. We have updated our student textbook (as of July 1, 2017) as a GoogleDoc that students (and teachers) can access online as well as in paperback format (now available). If you wish to obtain a free copy of the GoogleDoc, just drop us an email. (Our eight-volume Teacher’s Guides are designed to facilitate teacher use of the text and are also updated and available.)

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Please let us know what you would like to see in this newsletter as it evolves. To view past issues of the newsletter, contact Rich Kitchens at our email address. To see Rich Kitchens’ former classroom, check out:

General Articles, Hints and Reminders:

I have recently, belatededly, become a real fan of various PODCASTSS for use in your classrooms. Check below for some of my new favorites!

The Volokh Conspiracy” blog has relocated from The Washington Post to Where you can access it as often as you want with no paywall. The blog’s home page can now be found at:

Wb 100: Best law blogs [ABA Journal, 12/7/17]:

Three Big Constitutional Lessons of 2017 That Are Not Fully Appreciated [Justia, 12/15/17]: Professor Amar describes three important constitutional takeaway lessons from 2017. First, improper motive is the key to attacking many government actions, but it is a difficult ground on which to succeed. Second, the US Supreme Court seems to take a different position from that of lower courts on a number of issues. Finally, many norms that people assume are enshrined in the Constitution are actually not.


I.   Introduction to Law, the Constitution, and the Supreme Court [See TOPICS 1-10 in the 5th edition of Constitutional Law] Some recent articles that are relevant to this unit:


Decisions Decisions [Empirical SCOTUS blog, 12/9/17]: The other day Mark Sherman of AP report an interesting statistic via Twitter (Kimberly Robinson mentioned this stat in Bloomberg Big Law Business post as well): this term would be the Court’s slowest in recent years for releasing the first two orally argued decisions.  I decided to examine the details behind this statistic, which I provide in the graphic below.  The graphic tracks the Court’s release of its first two orally argued, written and signed decisions for all terms since 1990.  The opinions are separated by month and day on the vertical axis and by term on the horizontal axis.


In the Shadow of the Bill of Rights ∫[Gerard Magliocca in “Concurring Opinions” blog, 12/14/17]: One point that many judges and scholars make is that our emphasis on the Bill of Rights obscures the role that constitutional structure plays in protecting liberty. In other words, people tend to pay less attention to the internal limits  within the text (bicameralism, separation of powers, federalism, and enumerated powers) than they should.

How Do You Solve A Problem Like Kozinski? [Simple Justice” blog / SF Chron, 12/14/17]: Chief Judge Sidney Thomas has announced that a a fprmal inquiry has ben initiated into allegations of misconduct by Ninth Circuit Judge Alex Kozinski.


Why Government? [Justia, 12/.11/17]: Professor Margulies points out that “the market” did not create any of the benefits to which most of us have come to feel entitled to—including workers’ compensation, mortgage interest deductions, veterans’ benefits, non-discrimination laws, and many more. Rather, the federal government created these things, and the government continues to play a critical and beneficial role in everyone’s lives, despite widespread sentiment that “government is bad.” Margulies looks specifically to the Low Income Housing Tax Credit, which is the primary reason affordable housing exists, albeit in lesser numbers than is currently needed, and points out that this and other critical services are at risk in the GOP tax bill.

Senate poised to confirm Trump judicial nominee labeled ‘not qualified’ [The Hill, 12/11/17]:  The Senate is poised to confirm a judicial pick rated “not qualified” by the American Bar Association (ABA).


California’s chief justice has had her own #MeToo moments [LA TIMES, 12/11/17]: California Chief Justice Tani Cantil-Sakauye said Monday that she has had her own #MeToo moments during her legal career, being addressed as “sugar and honey and dear” and one of the “girls.”


II.  Defining the Political System: Federalism and Checks and Balances [See TOPICS 11-15 in the 5th edition of Constitutional Law] Some recent articles that are relevant to this unit:


FCC repeals net neutrality rules; at least 2 state AGs plan to challenge [ABA Journal / Reuters / Jurist, 12/14/17]: At least two state attorneys general announced they will join a multistate lawsuit challenging Thursday’s decision by the Federal Communications Commission to repeal net neutrality rules requiring internet providers to provide equal access to apps and websites.


New gun restrictions are coming to California in 2018 [SAC BEE, 12/11/17]: California’s more than 6 million gun owners are going to see new restrictions in 2018 stemming from sweeping regulations lawmakers and voters have approved over the past two years. But due to pending court challenges, shifting deadlines and contradictions in the laws, many gun owners say they’re unsure about new rules regulating where they can buy ammunition, what classifies as an assault rifle and whether it’s still legal to own high-capacity ammunition magazines.

SF court cool to Trump administration attempt to quash youths’ climate suit [SF Chron / SJ Merc, 12/11/17[:A federal appeals court in San Francisco gave a chilly response Monday to the Trump administration’s argument to scuttle a far-reaching lawsuit by 21 young people who say their rights are at risk from the government’s inaction on climate change.


The Amerian Presidency [TOPIC 15]


PODCASTS: What Donal Trump Teaches Us About Con Law

Rep. Speier: ‘Rumor on the Hill’ is Trump to Fire Mueller Before Christmas [KQED, 12/15/17]: Congresswoman Jackie Speier (D-San Mateo) told KQED Newsroom on Friday that she believes Republicans are trying to shut down the House Intelligence Committee’s probe into alleged Russian interference in the 2016 elections.

AP Fact Check: Trump’s iffy numbers on regulation [AP, 12/15/17]: President Donald Trump and his administration are ignoring one side of the ledger when they claim big savings from the federal regulations they’ve been able to roll back over most of this year.

Trump’s tweets were too vague and subjective to be defamatory, appeals court says [ABA Journal, 12/14/17]: An appeals court in New York has affirmed dismissal of a lawsuit that claimed Donald Trump defamed a guest television commentator in his tweets during the presidential campaign.

Trump Poised to Set Record for Appeals Court Judges [Roll Call, 12/13/17]: Three more nominees set to be confirmed this week.

Appeals panel upholds dismissal of defamation suit against Trump [NY Post / Bloomberg, 12/12/17]:  President Donald Trump has survived a GOP consultant’s attempt to revive her $4 million defamation case against him, with an appeals panel ruling that Cheryl Jacobus couldn’t show that his tweets calling her a “real dummy” hurt her career. A lower court tossed Jacobus’ Manhattan Supreme Court suit in January finding that Trump’s statements were opinion, not fact.

Trump’s Combative Denials Again Draw Him Into the Sexual Harassment Debate [NY Times, 12/12/17]: President Trump put himself once more at the center of the sexual harassment debate on Tuesday, repeating his contention that the women who have accused him of misconduct fabricated the allegations and describing Senator Kirsten Gillibrand of New York, one of his leading critics, as a “lightweight” who “would do anything” for campaign contributions.

The blame game begins inside the White House after Alabama stunner [CNN, 12/13/17]: As a cold morning broke at the White House on Wednesday, questions mounted about who was to blame for the remarkable loss in Alabama

The Fourth Circuit Travel Ban Argument: Framing the Challengers’ Case for the Supreme Court [Lawfare blog, 12/12/17]\: The substance and tone of the Dec. 8 Fourth Circuit en banc argument in International Refugee Assistance Project (IRAP) v. Trump differed substantially from the Dec. 6 Ninth Circuit argument in Hawaii’s challenge to the travel ban (EO-3). The Ninth Circuit panel in Hawaii v. Trump assessed the government’s un-cabined claim of authority under 8 U.S.C. § 1182(f) against what Hawaii’s lawyer, Neal Katyal, called the “finely reticulated” scheme of the Immigration and Nationality Act (INA).

Inside Trump’s Hour-by-Hour Battle for Self-Preservation ]NY Times, 12/9/17]: With Twitter as his Excalibur, President Trump takes on his doubters, powered by Diet Coke and long spells of cable news. But despite all his bluster, he views himself as a maligned outsider engaged in a struggle to be taken seriously, according to interviews with 60 insiders.

Republicans step up defense of ‘not qualified’ judicial nominees [Politico, 12/9/17]: GOP senators are ratcheting up their attacks on the American Bar Association, which has emerged as a stumbling block in President Donald Trump’s effort to transform the courts.

Kamala Harris says Trump should resign [Politico, 12/14/17]: Kamala Harris on Thursday called for President Donald Trump to resign over accusations of sexual harassment and assault, becoming the seventh senator to publicly call for Trump’s resignation.



III. The Political System: Voting and Campaigns [See TOPICS 16-20 in the 5th edition of Constitutional Law] Some recent articles that are relevant to this unit:



One Less Senate Vote Could Mean More Headaches for GOP [WSJ, 12/14/17]: With margin reduced to 51-49, approving nominations and passing legislation get tougher.

Partisan Gerrymandering and the Outlook for the 2018 U.S. House Elections [Sabato’s Crystal Ball, 12/14/17]: There is a growing sense among political observers that the United States may be heading toward a wave election in 2018. Results of recent special elections, including Doug Jones’ (D) victory in the Alabama Senate race on Tuesday, along with Democratic victories in the New Jersey and Virginia gubernatorial elections and surprisingly large Democratic gains in the Virginia House of Delegates all point toward the likelihood of substantial Democratic gains in next year’s midterm elections, including a real possibility that Democrats could regain control of the U.S. House

Once Unthinkable, Now Possible: Senate Looks Like a Tossup in 2018 [NY Times, 12/14/17]: At this time last year, the Democratic path to Senate control seemed impossible: Hold all of the Democratic seats, flip Arizona and Nevada, then hope for a miracle. The Democrats got the political version of a miracle on Tuesday.

Paul Ryan Sees His Wild Washington Journey Coming to An End [Politico, 12/14/17]: He felt he was ‘made for this moment.’ But now, on the verge of achieving his long-sought legislative dream, he’s got his eyes on the exits.

Republican civil war erupts anew [Po;iotico, 12/13/17]: Democrat Doug Jones’ victory in Alabama — far from settling the score between the McConnell and Bannon wings of the Republican Party — instead touched off another round of internecine GOP infighting over who’s to blame for the party’s loss in one of the most conservative states in the country.

Decker: In stunning 2017 defeats, Republicans see vision of difficulties in 2018 [LA Times, 12/12/17]: Democrats who opened the year clashing among themselves and lamenting President Trump’s election have closed 2017 with victories that demonstrated their ability to weaponize party enthusiasm and draw a template for success in a sharply competitive battle for Congress in 2018.

Jones wins in stunning Alabama upset [AP, 12/12/17]:  In a stunning victory aided by scandal, Democrat Doug Jones won Alabama’s special Senate election on Tuesday, beating back history, an embattled Republican opponent and President Donald Trump, who urgently endorsed GOP rebel Roy Moore despite a litany of sexual misconduct allegations.

Justices to Hear Second Partisan Gerrymandering Case [USA Today, 12/8/17]: WASHINGTON — The Supreme Court agreed Friday to hear a second political challenge to the way election districts were drawn, adding Maryland Republicans’ complaint to a docket that already includes a case brought by Wisconsin Democrats. Both cases give the justices an opportunity to do something they have never done: strike down election districts because of politics, rather than race. A ruling against the state legislature’s lines in either case could place other states’ districts in jeopardy as well.

Supervisor London Breed becomes acting San Francisco mayor upon Ed Lee’s death [SF CHRON, 12/12/17[: London Breed, a native San Franciscan who was raised by her grandmother in the city’s housing projects, became acting mayor of San Francisco early Tuesday morning. She is San Francisco’s first black female mayor.

Is the Supreme Court finally ready to tackle partisan gerrymandering? Signs suggest yes [Professor Hasen in his Election Law blogm, 12/11/17]: getting into the business of policing the worst partisan gerrymanders? Signs from last week suggest that it well might. At the very beginning of its term back in October, the court heard oral arguments in Gill vs. Whitford, a case challenging Wisconsin’s plan for drawing districts for its state Assembly. Republican legislators drew the lines to give them a great advantage in these elections. Even when Democrats won more than majority of votes cast in the Assembly elections, Republicans controlled about 60% of the seats.

Legislation and the Legislative Process (TOPIC 20)

The final GOP tax bill is complete. Here’s what is in it [Wash Post / CNS. 12/15/17]: Republicans were joyful Friday as they finalized their tax plan, bridging differences between the House and Senate bills and moving another step closer to getting legislation to President Trump.

Politicians accused of sexual harassment are being ousted by peer pressure [CALMATTERS, 12/13/17]: It’s a central tenet of democracy: The electorate is a politician’s ultimate boss. If voters don’t like what their representatives are up to, they can, as the saying goes, throw the bums out. But in recent weeks, as a wave of sexual harassment and assault allegations hits politicians in several statehouses and the nation’s capitol, another force is proving to be as powerful as the electorate: peer pressure.

House, Senate Leaders Reach Deal on Tax Package [CNS, 12/13/17]: House and Senate GOP leaders forged an agreement Wednesday on a sweeping overhaul of the nation’s tax laws, paving the way for final votes next week to slash taxes for businesses and give many Americans modest tax cuts starting next year.

Stalled Bill To Help California Schools Fight Fake News To Be Revived [CPR, 12/11/17]: Three bills aimed at fighting fake news stalled in the California Legislature this past year. At least one could resurface in the year ahead. Democratic State Sen. Bill Dodd said he plans to revive his bill, SB 135, in January or introduce a similar one.


IV. Criminal Law and Procedure (4th, 5th, 6th, and 8th amendments) [See TOPICS 21-28 in the 5th edition of Constitutional Law] Some recent articles that are relevant to this unit:

A Mass Incarceration Mystery A Mass Incarceration Mystery [Marshjall Project, 12/14/17]: Why are black imprisonment rates going down? Four theories.

Judge Finds New Orleans Debtors’ Prison Unconstitutional  [CNS, 12/15/17]: By charging poor prisoners fees they are unable to pay and relying on those fees to fund the court and pay salaries, Orleans Parish Criminal District Court is violating the Constitution, a federal judge ruled this week.

Suspect Evidence Informed a Momentous Supreme Court Decision on Criminal Sentencing [Pro Publica,m 12/11/17[: The U.S. Sentencing Commission helped send more people to prison for longer terms; It’s a shame it was created to address a nonexistent crisis; Here’s how the Supreme Court got misled.

What the Doug Jones Victory in Alabama Means for Criminal Justice [The Marshall Project, 12/14/17]: 
Last year, prospects were looking good for a bipartisan effort in Congress to overhaul federal sentencing. But after long and careful negotiations, one senator almost single-handedly torpedoed the measure: the junior Republican from Alabama, Jeff Sessions.

PODCASTS: “Seriel”: I listened to the first episode and am hooked.

When Your 18th Birthday Gift Is a Transfer to Adult Prison [Marshall Project, 12/7/17]: A “baby-faced kid” comes of age while incarcerated.


V. 1st Amendment (Speech, Religion, Press and Assembly) [See TOPICS 29-33 in the 5th edition of Constitutional Law] Some recent articles that are relevant to this unit:


Podcast: Beyond Blief [Newseum, 12/15/17]: How do we live together as one nation of people with so many different religious faiths?  Kristen Looney of the Religious Freedom Center shares her insights.

First Amendment is at a crossroads in Supreme Court [CNN, 121517]:   As the Supreme Court digs into a momentous term, the justices have signaled an unusual interest in the First Amendment by agreeing to hear seven different cases exploring the contours of free speech.

What If the Founders Had Free Speech Wrong? [Bloomberg, 12/14/17]: A scholar’s jarring claim: America’s framers meant to protect a lot less speech than most of us think.

Vulgar Clothing Trademark Deserves Legal Protection, Court Rules [Bloomberg, 12/15/17]: A U.S. appeals court ruled that “FUCT” can be trademarked, saying federal reviewers were wrong to deny that protection over te term’s vulgarity.

Hospital worker fired for refusing flu shot isn’t a victim of religious discrimination, U.S. court says [Harrisburg (PA.) Patriot0News, 12/14/17]:

A hospital worker who was fired for refusing to get a flu shot can’t claim he was discriminated against on religious grounds, a federal court panel ruled Thursday.

The case is Erudden v. Pilling and can be found at:


Facebook Messerger Kids—Good for Whom? [Justia, 12/13/17]: Professor Ramasastry comments on Facebook’s recently announced messenger app for kids. Ramasastry describes the key features of Facebook’s new program and explores the privacy and safety concerns that arise with this business model. She calls upon policymakers or advocacy groups to weigh in, as well, anticipating that this will not be the only business model aimed at kids in this manner.


Twi Wirds Dib;t Naje a :Rught—But they Can Misuse One [Newseum, 12/7/17]: Didn’t we all learn, long ago, that “two wrongs don’t make a right”? But two wrongs can misuse a right — as in our right to free expression, guaranteed by the First Amendment.



VI.     14th Amendment, Discrimination, Privacy, Working, Citizenship & Immigration [See TOPICS 34-41 in the 5th edition of Constitutional Law] Some recent articles that are relevant to this unit:


A Comment on Some Misplaced and Dangerous Slippery-Slope Concerns

About Masterpiece Cakeshop [“Narrowest Grounds” blog, 12/13/17]:  One concern one hears from various quarters (this episode of First Mondays, this column by Michael Dorf, Justice Kagan’s questioning at oral argument, any number of amicus briefs) about Masterpiece Cakeshop’s position in Masterpiece Cakeshopis that if wedding-cake designers who object to same-sex marriage have First Amendment rights not to service same-sex weddings, then so do makeup artists, hair stylists, florists, tailors, and just about any other wedding-related service provider with the same views.  All of them, the argument goes, might equally be said to be engaged in expression of a sort.

Another Federal Court Blocks Administration’’s ban on transgender military service [Jurist, 12/12/17]: US District Judge Marsha Pechman partially granted the preliminary injunction, finding the ban likely violates the plaintiffs’ constitutional rights to equal protection, substantive due process, and First Amendment protections. Additionally, Pechman partially granted the government’s motion to dismiss, finding the ban does not violate the plaintiffs’ rights to procedural due process.

En Banc 9th Circuit Takes Up California Teacher’s Pay-Inequity Case  [CNS, 12/12/17]: The en banc Ninth Circuit gave little indication Tuesday as to whether an employer can base an employee’s starting salary on salary history alone, a practice critics say perpetuates pay inequity between women and men.

Liberty and Equality Sometimes Require Tragic Choices, Just Not in Masterpiece Cakeshop [Justia, 12/12/17]: Professor Dorf explains why the Masterpiece Cakeshop case before the US Supreme Court—in which the Court will decide whether a baker may refuse to serve a gay couple based on his religious beliefs—does not present a difficult choice between liberty and equality. Rather, Dorf points out, the baker’s free speech claim in this case should be relatively easy to reject because a cake without an articulate message on it does not constitute the “speech” of the person who made it.

Supreme Court turns down case that raised issue of LGBT worker protections [LA Times / Wash Post, 12/11/17]: The he Supreme Court has put off for a year or more a ruling on whether gays and lesbians are protected from job discrimination under the federal civil rights law. The justices without comment or dissent declined to hear a Georgia woman’s suit that alleged she was pushed out of her job as a hospital security guard because she is a lesbian.

The #MeToo Moment: How One Harasser Can Rob a Generation of Women [NY Times, 12/14/17]: Last week Heidi Bond, a former law clerk to Judge Alex Kozinski, accused the prominent judge of sexually harassing her while she was working in his chambers a decade ago.

Is the Judiciary Ready to Handle Harassment Charges? ]NY Magazine, 12/11/17]: For the better part of his esteemed career, Alex Kozinski, one of the top appellate judges in the nation, has been his own public-relations machine, fielding press inquiries and interviews with journalists, unlike any of his peers in the federal judiciary, who never talk to the press. But when the Los Angeles Times reached the longtime Ronald Reagan appointee this past week for comment on allegations in another paper that he’d been sexually improper with at least six women who had worked with him, Kozinski’s nonchalance with reporters may have gotten the best of him. “If this is all they are able to dredge up after 35 years, I am not too worried,” he told the Times.

The Constitutional Right to Education is Long Overdue [EdLawProfs blog, 12/5/17]:  Public school funding has shrunk over the past decade. School dropout rates reached historic highs. Large achievement gaps [ersists. And the overall performance of our nation’s students falls well below our international peers.


International Law, Citizenship and Immigration [TOPIC 40-42]

Federal investigation finds ‘significant issues’ at immigrant detention centers [NPR, 12/14/17]: Immigrants detained at four large centers used by Immigration and Customs Enforcement are subject to inhumane treatment, given insufficient hygiene supplies and medical care, and provided potentially unsafe food, according to a federal report.


Sources used in this particular newsletter:


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