What's Really G
March 22, 2007
Official Course Description
Constitutional Law I (1C01) - 3 Units
This course examines the structural provisions of the United States Constitution, including the theory and practice of judicial review in constitutional cases; the powers of Congress; federalism; and the separation of powers.
A second course in Constitutional Law (Con Law II) is also required, and offered in the Fall semester for Day students.
Grading and Other Policies
There will be a 3-hour final exam on May 2, 2005 [corrected date]. The exam will be 1/2 essay and 1/2 multiple choice. Past exams will be posted to this web site for practice purposes, as well as some sample answers. In addition to the exam, I award ± 3 points for class participation. To earn points, students must make valuable voluntary contributions to class discussion or class email discussions (see below). Value is measured both quantitatively and qualitatively. Students who fail to respond adequately to questions posed to them in class may lose points. Points will also be deducted for excessive class absence.
Class attendance is required. However, there is no need to notify me of unavoidable absences. Every class will be recorded (either audio or audio/video). Please make sure to review a class recording before asking me about matters you may have missed in class.
An email discussion group has been created for this class. You can post messages to the entire class using the majordomo email list. Participation is encouraged and rewarded (as is class participation). Private communication to me is also encouraged. I am happy to answer almost any question via email (or phone, or in person). If your private question is of general interest, I may re-broadcast it anonymously to the entire class.
What's Really Going On
Constitutional Law should be your favorite course. It permeates nearly all of political and civic life in the United States. This is true both for the substantive issues you will study in Con Law II, such as free speech and equal protection, and for the structural issues you will study this semester. By structural issues, I mean how our government is structured, including its law making, law enforcing and law applying functions. If you think of those 3 functions, you will see the structure of the federal government. The law making power is reposed in Congress and governed by Article I of the Constitution. The law enforcing power is held by the executive department (the President) and specified in Article II. The law applying power is vested in the judiciary - the federal courts - as found in Article III. So, if you understand the basic structure of the federal government, and how the powers are distributed and shared among the 3 branches, you will have a good handle on this course.
One layer of complexity sits atop this structural view of government power. In addition to the federal government, we have states and even lesser political subdivisions such as cities. It is said that the federal government has limited powers. All other governmental powers are supposedly held by the states. By dividing up power between a large central government and smaller units of local government (states), we prevent concentration and abuse of power. Or at least that is the theory of federalism. Because government power in the United States is both divided and shared, it makes it a little hard at times to know exactly who has the power to do what. Indeed, this is the single most difficult issue in all of constitutional law, which branch and level of government has a particular power.
To answer that question, and to do well in this course, you need to know the rule, theory and practice. In other words, a particular rule will get you only so far. Rules can change, and often do. Moreover, it is not always easy to apply even well-established rules to new situations. As a result, practitioners of constitutional law also need to know the theory and historical context for a rule. If you understand why we have a particular rule, what principle it serves, and how it has been applied in the past, you will be in a good position to apply it to new problems. For example, Article I of the constitution gives congress the exclusive power to "declare war." Congress last declared war on December 8, 1941. Yet our nation has gone to war more than a dozen times since then. Are these wars lawful or unconstitutional?
We generally learn constitutional law (rule, theory and practice) through use of the "case method of legal instruction." In other words, we read Supreme Court cases to find out what the legal rule is, how it is derived or interpreted, and how it is applied to a particular set of facts. You are probably tired of hearing about the IRAC method of legal writing, but here's something you might not expect - the Supreme Court uses IRAC when it writes its opinions. The Court first states the Issue (e.g., can state colleges charge non-residents higher tuition?), then states the constitutional Rule (Art. IV generally requires states to treat citizens and non-citizens alike), then explains the rule (equality of treament historically required only for "fundamental rights"), then Applies the rule (different tuition amounts are unconstitutional if higher education is a fundamental right), and then reaches a Conclusion (higher education is not a fundamental right; therefore different tuition amounts are ok). If you use IRAC, both in preparing for class and writing your exam answer, you will not only get a good grade, you'll get on the Supreme Court some day.
We've had 215 years of constitutional law, probably over a 100,000 reported constitutional law cases (Supreme Court and inferior courts), and you're going to learn all you need to know in 14 short weeks. Yeah right. Well, you'll learn the major principles, but more importantly, you'll learn how to do constitutional law. So, that's what you should try to get out of this course.
