Introduction to the Study of Constitutional Law
The Issues: What is a constitution? What purposes does the Constitution of the United States serve?
I find the study of constitutional law to be immensely interesting. It concerns some of the most fundamental questions about the nature of our government and our society. In its text and caselaw, constitutional law reveals the path of our history, from the drafting of the Constitution in 1787 through the adoption of the important 13th, 14th, and 15th amendments following the Civil War, through the desegregation battles of the 1950s and 1960s, to our confrontation of the perplexing issues of today such as regulation of the Internet and euthanasia. Constitutional law, it its baffling complexity, is a reflection of our deepest values, our political conflict, and our nation’s moral trajectory.
I understand, however, from years of teaching that constitutional law is not every student’s cup of tea. Some students become frustrated with its “fuzziness.” Yes, it is fuzzy–and one cannot take a clear picture of a fuzzy object. There are relatively few clear answers in constitutional law (and those that are clear–e.g. “Can a 27-year-old be elected President?”–tend not to be very significant to lawyers). The indefiniteness of constitutional law is a function of many things, including: (1) a text that is the product of long gone eras, (2) a text that in many cases (e.g, “due process of law,” “equal protection of the laws”) was intentionally vague to accomodate the needs of a changing society, and (3) important (and often emotional) issues that tend to bring the values and politics of judges into play more than in other areas of law, where judges are more likely to think of their judging as an intellectual exercise or puzzle.
To students looking for clear rules, I say, “Stop looking.” What is important is to understand is not so much answers as it is approaches and questions. Learn the sources that judges might rely upon to guide their constitutional interpretation (text of Constitution, intentions of framers, case precedent, policy consequences of alternative interpretations). Learn how judges are likely to weigh these various guides in various contexts. Understand historical trends and understand that judges are ultimately affected by the same economic and social forces as society as a whole. With a solid knowledge of these things, students will be able to make intelligent and potentially convincing arguments–and make reasonable predictions about the likelihood of their arguments being successful in an actual case involving the same issues.
History of the Constitution
No person played a greater role in that history than the man pictured above, James Madison. Madison not only prepared the draft that set the framework for debate at the 1787 Constitutional Convention in Philadelphia, but also became the principal drafter of the Bill of Rights. To read about the Constitution’s early history, jump to: History .
For fun only: do not look up answers in advance of class
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Assignment:Read the Constitution of the United States. As you read it, identify those provisions which perform each of the following functions: (1) set up the machinery of the national government; (2) confer power on one of the three branches of the national government; (3) confer power on state governments; (4) limit the power of the national government; (5) limit the power of state governments; (6) limit the power of private individuals.
1. Did you find provisions that fit into each of the six categories listed above?
2. What seem to be the predominant purposes of the United States Constitution?
Additional Questions for Class Discussion
1. What is a constitution? How many constitutions are there in the United States? Does every country have a constitution? Do cities and counties have constitutions? Do private organizations sometimes have constitutions?
2. How is constitutional law different from statutory law, administrative law, and common law? (Think about differences in how each form of law is made, how it is interpreted, how it might be changed, and what subject matter it is likely to cover.)A
3. What benefits come from a nation having a written constitution?A
4. Are there disadvantages in having a written constitution such as ours? If so, what might they be?A
Soon you will begin reading decisions of the United States Supreme Court. If you wish to begin familiarizing yourself with the operation of this remarkable (and sometimes controversial) institution and the justices who have sat on it, jump to: Supreme Court.