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Constitutional Law (LAW-503-002)
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Constitutional law, as a legal discipline, is truly enigmatic. There is simply no denying the importance and significance of constitutional law as a topic of study, especially today. At the same time, many of the topics and doctrines we will study this semester are complicated, convoluted, and, at times, entirely incoherent. And although some topics—like abortion, affirmative action, antidiscrimination, and privacy—are doubtless to evoke strong feelings in many of you, other constitutional issues—such as the scope of the Commerce Clause, the limits on the federal government imposed by the Tenth Amendment, and the separation of powers—are not any less important; they’re just not as obviously “political” or, as a result, as obviously fun to study and debate. Further complicating things, the Supreme Court is perhaps even more unpredictable (and, arguably, more political) when it comes to constitutional doctrine than it is in any other area, which gives rise to separate but equally challenging questions about the nature and role of the Court as an institution, its power, and, ultimately, its legitimacy.
Our goal this semester is to get our hands around all of these issues, and to gain a sophisticated understanding not just of the individual constitutional doctrines we study, but of the structure of the constitutional system in which those doctrines develop and operate. Thus, our focus will be both historical and doctrinal, studying how many of our most important constitutional provisions and ideals have evolved over time. Because of the breadth of the topic, we simply will not be able to cover every topic (so, for instance, we will basically ignore the First Amendment in its entirety). And there will be some topics we do cover, but in nowhere near enough depth. Virtually every unit of our class could be a course unto itself, but we just don’t have enough time. Thus, this class is truly a survey of American constitutional law, and one that will hopefully leave you wanting to pursue any number of advanced topics in the field over your final two years of study.
Textbooks and Other Materials
The textbook information on this page was provided by the instructor. Students should use this information when considering purchases from the AU Campus Store or other vendors. Students may check here to determine if books are currently available for purchase at the AU Campus Store.
Our casebook is Paul Brest et al., Processes of Constitutional Decisionmaking. You will need both the 5th edition (published in 2007) and the current (re: 2012) Supplement. I will also provide additional readings as handouts available electronically via MyWCL.
In addition, you may find useful the fourth edition of Erwin Chemerinsky's eponymous treatise on constitutional law. However, let me stress that (1) this book takes a very different (and far more doctrinal) organizational approach to the course; and (2) it is not a replacement for the regular class reading. Indeed, I have no expectation whatsoever that you consult any sources other than those that are assigned.
First Class Readings
The assignment for the first class is to (1) carefully read through the Course Overview / Syllabus (available both on this webpage and via MyWCL); and (2) complete assignment “1” therein (i.e., read pages 1–15 and 19–37 of the casebook).
As you do the reading, consider the following five sets of questions:
1. Why was the Constitution necessary? What were some of the major defects with the Articles of Confederation? How did the Constitution attempt to remedy those defects? How did the Constitution get around the Articles’ requirement that any amendment thereto be by unanimous consent of the states?
2. What were some of the principal critiques of the Constitution as written? What were the major sources of disagreements between the Constitution’s supporters and its detractors?
3. Why were the “Federalists,” especially Alexander Hamilton and (at least initially) James Madison, opposed to the inclusion of a “Bill of Rights” in the Constitution? What were their concerns? Knowing what you know now, have their concerns been realized?
4. How does the Constitution deal with slavery? Which provisions seem relevant? Do they support the view that the Constitution is a “slavocratic” (or pro-slavery) document? Whatever happened to the Declaration of Independence’s famous assertion that “all men are created equal”?
5. Why was the Bank of the United States constitutional, according to its defenders? Why was it unconstitutional, according to its detractors? Who do you think had the better of the argument, based upon the “original understanding”? Does any provision of the Constitution seem to contemplate a congressional power to create a national bank? If so, which one(s)? More fundamentally, is it clear to you why, in a conflict between state law and the federal Constitution, the latter prevails? What, in the end, makes the Constitution supreme?
The syllabus is available in the following format(s):