course description:

Historically, legal scholarship, like religious scholarship, was a central concern of the liberal arts. In the late-capitalist era, however, law has become limited to the province of lawyers. Law is what lawyers do. Yet that understanding disregards the role law has played in the study of ethics and political philosophy.

Another way of looking at constitutional law is offered by one of the editors of our textbook, Sanford Levinson, who wrote that "constitutional law provides a public vocabulary absolutely essential to understand the nature of public discourse within our society" (Constitutional Faith, Princeton University Press, 1994, 168). According to Levinson, understanding constitutional law improves our ability to function politically, not as lawyers but as citizens of a constitutional republic.

This class will consider the decision-making processes of the United States Supreme Court as a way of considering the contradictions and ideals of American jurisprudence.

readings:

Brest, Levinson, Balkin & Amar, Processes of Constitutional Decisionmaking, 4th Edition

Levi, Introduction to Legal Reasoning

Corwin, The "Higher Law" Background of American Constitutional Law (two copies on reserve)

papers:

Writing about constitutional issues is tricky in the same way that juggling balls is tricky. First, there is the issue of federalism. Each case contains at least three agents. There is the agency of the petitioner, the agency of the government actor and the agency of the court itself. What on one level appears to be a simple matter of a bank cashier refusing to pay a tax (McCulloch v. Maryland) is actually a question of a state's legislatures ability to enact a tax on a federal institution as well as a federal court's ability to pass judgment on a state legislature. The very nature of our federalist system causes for many intricate and heated power plays.The writer of a constitutional essay must keep in mind the implications her argument will have within a federalist system, a system commited to checks and balances and constantly at war with itself.

Second, there is the issue of interpretation. Who gets to interpret the constitution? Are the framers the only authority? Must one be trained as a lawyer to read the constitution correctly? What does it mean that justices often cite extra-constitutional authorities, such as the Old Testament, or International Law, or the Federalist Papers?

Luckily, the editors of our textbook are very alive to the practice of interpretation in a federalist system. Their "discussion" sections and treatment of the cases point to the larger philosophical and political questions that students of law often ignore. If you're struggling to find a paper topic, read their comments.

grading criteria:

Attendance is critical. If you have to miss a class, please let us know. Reading is essential and for newcomers can be very laborious. It takes time to make friends with judicial rhetoric. The editors do a fine job of highlighting the important points. Take their advice, you'll read better if you know what you're looking for. Active participation in the class discussion is necessary. Writing clear and lucid prose is the stuff of the whole affair.(top)