This course will focus on the many ways that the United States Constitution structures the American system of government. This in turn means that we will focus on what I have come to call the "hard-wired" parts of the Constitution that are never in fact litigated because, at least from a lawyer's perspective, the Constitution is so clear as to make argument implausible. Two obvious examples include the day that we inaugurate newly-elected Presidents (the answer to which is found in the 20th Amendment) or the number of senators allocated to Wyoming, currently the smallest-population state in the Union (the answer to which is found in Article I). One might distinguish between the "hard-wired" and "controversial," open-to-interpretive-dispute aspects of the Constitution -- think only of the Equal Protection Clause of the Fourteenth Amendment--precisely by asking what parts of the Constitution would be open to a "true-false" examination.
One consequence of focusing on "hard-wired structures" is that we will be spending relatively little time looking at issues surrounding the direct protection of "rights." Without denigrating the importance of rights- protecting clauses, I simply note that they are constantly litigated and, therefore, open to significantly different interpretations depending on the particular judges (or other adjudicators) doing the deciding. If one believes that a particular approach, say, to the First Amendment's guarantee of freedom of speech is wrong, then the response is far less "amendment" of the Constitution than the election of presidents who will appoint judges who share your view as to the proper interpretation of the First Amendment (complemented, of course, by senators who will confirm the President's nominees). Thus, the First Amendment is not "hard-wired" in the way that Inauguration Day is. This obviously doesn't mean that the First Amendment is less important or interesting than the Inauguration Day Clause, but it does mean that one understands certain important things about the United States Constitution by focusing even on such clauses as that dealing with Inauguration Day that tend to be missed if one focuses only on clauses like the First Amendment (which will be the subject of Class 23, as set out in the syllabus below).
It is my hope that you will end up arguing about too-often-overlooked aspects of the Constitution with the same heat (and, one hopes, light) as might occur were we concentrating instead on such topics as freedom of speech or freedom of religion, whether the state should be allowed to regulate abortion, or if state universities should be allowed to take race and ethnicity into account when making offers of admission or appointments to the faculty. As a matter of fact, though, most Americans don't concern themselves all that much with the kinds of issues that interest most "constitutional lawyers" and, for that matter, most pundits who write about the Constitution. Most Americans tend to focus on whether the political system is responding adequately to their concerns about the economy, healthcare, immigration, energy policy, the environment, national security, and the like, about which courts (and the Constitution) have remarkably little to say, when all is said and done. On the other hand, the formal structures of governance established by the Constitution- -including allocation of voting power in the Senate or the difficulties in overriding presidential vetoes--may have a great deal to do with explaining the success (or failure) of the political system's responses to such issues. One simply cannot understand the operations of the United States government without understanding the "constitutional sea" within which political fish necessarily swim. It is inevitably the case that any serious inquiry into constitutional structures and their importance must quickly become comparative. Rudyard Kipling once asked, "[W]hat should they know of England who only England know?" I believe that anyone seriously interested in the U.S. Constitution should spend far more time not only on its nonlitigated aspects but also on what the study of other constitutional systems might tell us about the strengths and weaknesses of given constitutional structures. Such comparative study most certainly need not be limited only to "foreign" constitutions. After all, every state within the United States has its own constitution, which is often of considerable import in understanding the working (or failure to work) of a given state's political institutions. Consider, for example, the lead sentence of an article in the New York Times immediately following the rejection by the California electorate of a number of measures most political leaders deemed necessary to rescue the state from its present desperate economic situation: "Direct democracy has once again upended California--enough so that the state may finally consider another way by overhauling its Constitution for the first time in 130 years." The problem, however, is not only "direct democracy," a reference to the constitutionally granted ability of the electorate to pass legislation and even constitutional amendments by initiative and referendum, but also, and just as importantly, other aspects of the California Constitution. Thus the distinguished magazine The Economist, in a pre-election article entitled "The ungovernable state," noted that "California has a unique combination of features which, individually, are shared by other states but collectively cause dysfunction." The first is "the requirement that any budget pass both houses of the legislature with a two- thirds majority," a requirement found in the constitutions of two other states, Rhode Island and Arkansas. "But California, where taxation and budgets are determined separately, also requires two-thirds majorities for any tax increase. Twelve other states demand this. Only California, however, has both requirements."
This explains why one of the assigned books is John Dinan's The American State Constitutional Tradition, which will give us an opportunity to look at some of the range of solutions to structuring the polities chosen by various states; some, like California, are obviously considerably larger than most countries in the world. But we shall also pay some attention, as appropriate, to other national constitutions, and even to such increasingly important "transnational" quasi-constitutions as those that increasingly structure the political life of members of the European Union or signatories to the European Convention of Human Rights who wish to join the EU. As Kipling suggested, such knowledge of other political systems, which has some value in itself, will also deepen our understanding of what may be at stake with regard to the choices manifested in the United States Constitution. And, one should emphasize, the choices made often have deep connections to one's basic views of political theory, including, of course, the moral questions inevitably attached to such theory. What is the relationship between certain constitutional structures and one's theory of justice? The most obvious question that will be raised throughout the course, for example, involves the degree to which the United States Constitution is, or ought to be, "democratic." Does (often justified) concerns about "tyranny of the majority" necessarily translate into the proposition that, in effect, it should require "super-majoritarian" approval for any significant legislation, as one might well argue is the case with our Constitution? Or does that risk what might be termed "tyranny of the minority" that can exercise veto rights over changes that might be strongly desired by substantial majorities? A variant of this question, perhaps, concerns the extent to which decisions should be made by "we the people" (whether by majority or supermajority) or, rather, either by persons who are warranted to have either the specific kind of character (or "virtue") we seek in public officials or by certified "experts" in the issues facing government. (For starters, think only of judges and whether they should necessarily be lawyers.)
In any event, there is no reason at all that any of you should necessarily have taken "constitutional law" before taking this course. For better or worse, this course has remarkably little overlap with the standard courses in "constitutional law" that are offered. There will be almost no reference to any cases at all, and if there is, I will fill you in on whatever you need to know. So I welcome first-year students (as well, of course, as second- and third-year students as well).
||9:05 - 10:20 am
- Course Type
- 1L and upperclass elective