Why impose a course on constitutional law on our students?

Ilya Somin isomin at gmu.edu
Mon Jul 9 20:32:54 PDT 2007


I agree with Sandy that it is important to integrate the "hard-wired" Constitution into the course, as well as some nonjudicial decisions such as the debate over the enactment of the 14th Amendment, the debate over non-Article V changes to the COnstitution, etc.. I try to cover these issues as much as possible when I teach Con Law I.

I also agree that relatively few law students will ever litigate con law issues (except may be for crim law issues that don't usually get included in intro con law courses).

However, at at least some schools, many students will go on to consider con law issues in their work for the government, as lobbyists, in public policy organizations, and so on. At GMU, we probably have a higher percentage of such students because of our location in DC. But there are probably significant numbers of them in other elite law schools, including (I imagine) Texas.

Finally, as Nelson and David suggest, it is important for students to understand the ways in which the Court might depart from the COnstitution and also (I would add) to understand the ways in which the Court itself is a political institution acting under constraints imposed by other actors in the political system.

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339

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I have no objection to immersing students in such material--and I applaud a course that, relatively speaking, ignores judicial decisions, but why not the debates as well about secession and the aftermath of the War (including, obviously, the 14th Amendment), not to mention other popularl debates later in the 19th and 20th century over constitutional meaning?  
 
sandy

________________________________

From: Nelson Lund [mailto:nlund at gmu.edu]
Sent: Mon 7/9/2007 8:26 PM
To: conlawprof at lists.ucla.edu
Cc: Sanford Levinson
Subject: Re: Why impose a course on constitutional law on our students?


Nothing is final yet, and the instructors may not all use the same syllabus. The course will be offered for the first time next spring--I imagine that we'll have something that can usefully be shared sometime during the auturmn semester. The basic idea is to focus exclusively, or almost so, on primary sources such as the Articles of Confederation, Madison's Convention notes, selected Anti-Federalist writings, and the complete Federalist Papers.

Nelson Lund
George Mason


Sanford Levinson wrote: 

	I presume that I'm not alone in being interested in the syllabus of the new required course.  
	 
	sandy

________________________________

	From: Nelson Lund [mailto:nlund at gmu.edu]
	Sent: Mon 7/9/2007 4:20 PM
	To: conlawprof at lists.ucla.edu
	Cc: DavidEBernstein at aol.com; Sanford Levinson
	Subject: Re: Why impose a course on constitutional law on our students?
	
	
	Consistently, perhaps, with the spirit of the comments from both David Bernstein and Professor Levinson, George Mason recently created a new required course on the Constitution, which is a prerequisite to courses about constitutional law. Simultaneously, the previous requirement that students take Constitutional Law II (equal protection and substantive due process) was eliminated.
	
	Nelson Lund
	George Mason
	
	
	DavidEBernstein at aol.com wrote:
	

		
		I always tell my students that when they are sworn in to the bar they will take an oath to uphold the Constitution, they should have some idea of what they are swearing to uphold and some theory as to what it means, and that they shouldn't confuse the latest pronouncement of five Justices with "the Constitution."
		 
		In a message dated 7/9/2007 3:56:57 PM Eastern Daylight Time, SLevinson at law.utexas.edu writes:

			This comes under the category of shameless self-promotion.  Our
			colleague Malla Pollack has founded a new (online) law review, the
			American Justice L. Rev., and the first issue includes a piece of mine,
			"REFLECTIONS ON THE ROLE OF CONSTITUTIONAL LAW IN THE LAW SCHOOL
			CURRICULUM."  It can be found at  
			
			http://www.ajsl.us/review/Pollack%20LevinsonforPUBLICATION.pdf
			
			To make a longish story short, I argue that there's no good reason to
			require constitutional law (as is done at most law schools, save for the
			University of Chicago) in terms, e.g., of preparing students for the
			bar--we don't teach lots of subjects that are covered on the bar--or
			preparing students to practice law--most of our students will never have
			a constitutional law case in their entire careers, though they are
			likely to have lots of cases in subjects that we don't require, e.g.,
			family law.  So, if there is a justification for requiring
			constitutional law, as I think there is, it is to prepare them to be
			good citizens and civic leaders.  But it should be obvious that
			preparation for that role does not require that our students learn the
			latest three- and four-part tests or most other contemporary doctrine.
			Not surprisingly, I argue that it does require an historical overview of
			American constitutional development (which can be taught, normatively,
			as a story either of decline or progress, or neutrally as the way that
			the Constitution, for better or worse, has actually developed over the
			past 220 years) and paying far more attention that we now pay to what I
			have come to call the "hard-wired Constitution."  Indeed, not to put too
			fine a point on it, I think that the legal academy is criminally
			negligent in failing to teach our students about what are in fact the
			most important parts of the Constitution (which, of course, are never
			litigated and most of which raise few questions of "interpretation" the
			way legal academics define such questions).  
			
			Obviously, I would be delighted to read any responses, on- or off-line,
			to my arguments, which are, just as obviously, meant to stir up a debate
			(and not only to promote sales of my book and adoption of our casebook
			:) )
			
			sandy

		 



		
________________________________

		See what's free at AOL.com <http://www.aol.com/?ncid=AOLAOF00020000000503> . 
		
________________________________


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