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Friday, February 29, 2008

Can You Teach Constitutional Law Without Assigning the Constitution as Reading?

When I was taking Constitutional Law, my teacher, Prof. Charles Fried, assigned the U.S. Constitution as reading right at the beginning of the semester. But talking to friends, I found out that at least one Con Law professor at my school did not. I was aghast. (And it is even more shocking to me thinking back on it, as that professor had clerked for Justice Scalia, champion of textualism.)

So my question: Is this scandalous? Is it outrageous to teach Con Law and never require students to read the Constitution front to back?

And is it common practice?

It seems to me that sitting down and reading the whole Constitution is useful for learning at least three things:

1) how much of it has to do with slavery
2) how much of it is disused
3) how little of it we’ll be focusing on for the rest of the course

Posted by Eric E. Johnson on February 29, 2008 at 06:03 AM in Constitutional thoughts, Teaching Law | Permalink

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For Pete's sake, it's not that big a document. I'm not a lawyer or a law student and I've read it many times. I would expect any serious student of American jurisprudence to have read it before the class without its having been assigned.

Posted by: Andrew | Mar 3, 2008 11:19:28 AM

Reading the Constitution is a useful exercise for first-year students because it quickly demonstrates that the vast majority of the Constitution has nothing to do with what they think it does (equality, abortion, free speech, religion, and so forth).

But this can be accomplished with a quick in-class exercise. Ask students to call out what they associate with the Constitution. Write those things on the board. Then divide the class into groups, and ask each group to read a part of the Constitution. Ask them to locate where in that part any of the things on the board are located. And, if they can do it quickly (parsing the language will be a challenge), ask them what their part of the Constitution is really about.

In this way, you can quickly graph out on the board that the Constitution is mostly a proceduralist document, and also begin to discuss some of its interesting features.

Doing this as an in-class exercise accomplishes a few things:

1. It opens up the discussion in the first class; all students are likely to know something about the constitution;

2. It helps them to understand why what they know is not what the class will mostly be about;

3. It allows the professor to explain the syllabus;

4. If you have a particular viewpoint of the Constitution, it gives you an opportunity to introduce it (for instance, if you think that the substantive rights are, at their core, proceduralist in nature, the structure of the Constitution is a useful way of getting at that).

5. For me, it would introduce the students to the way I will conduct a lot of classes--with collaborative in-class work, a particular way of using the board, and so forth.

Posted by: Hillel Levin | Mar 1, 2008 10:38:44 PM

I begin each Con Law I semester by having the students read the entirety of the Constitution and the Bill of Rights. I ask them to post to the course website a comment (of modest length) about one glaring omission, shocking inclusion, funny element or just one thing that perplexes them about the text. The point of the exercise is to try and force them to see the enormous gulf between what they imagine the Constitution to say and what it in fact does.
Following the first class, each student must read and comment on at least one of their colleagues postings. (This is a pattern we return to with news articles and other items throughout the semester.) It is a genuine highlight of each semester for me, reading those comments. And, my students enjoy being able to get some free form commentary off their chests. Although many comments are unsurprising (Where is the right to education? What is the 3/5 clause? What's Up with the random Capitalization?), each year there are new insights into the perceptions my students bring to the class and often, new elements for me to think about.
I also begin each "section" asking the students to read (re-read) just that text and we spend a few minutes discussing our expectations from the text alone. Fun stuff, I assure you.

Posted by: E.C.Christiansen | Mar 1, 2008 6:04:50 PM

Prof. Gey had us read the entire Constitution amendments and all with him in class on the first day just so when a judge asks if we have you even read the section relevant to the argument we could honestly say yes because, he said, the inevitable next question would be who the hell taught you con law? He is a funny guy (no pun intended) and as fast as he talks it really took no time at all.

Posted by: Jim Green | Mar 1, 2008 3:35:43 PM

FWIW, the couple of times I taught Con Law I, I started with the Declaration, then the Articles, then the Constitution itself, before going on to "Constitutional Law." Famously, one of the leading Con Law casebooks in the 80s neglected to include the text of the Constitution.

Posted by: David Bernstein | Feb 29, 2008 9:54:42 PM

I dunno, I teach Civ Pro without assigning students to read all the rules in order, and we don't discuss where the rules came from in any great detail. All they need to know is that the rules are binding, and that we'll be talking about some of them in class. Why isn't it the same for the Constitution?

Posted by: Bruce Boyden | Feb 29, 2008 5:19:07 PM

I never have had a conlaw class in which the instructor required that we read the Constitution -- much less the Articles of Confederation or the Declaration of Independence. And, I have had at least four conlaw classes respectively at Berkeley and Penn! What I find even more remarkable is that I cannot recall a conlaw prof ever discussing what kind of legal (as distinct from political) instrument the Constitution represents. Is it not reasonable to assume that when one teaches conlaw that s/he should at the very least require that students read the text being interpreted and discuss what kind of legal instrument this text represents?

I have found in recent years that those provisions of the Constitution that are rarely -- if ever -- discussed in class represent some of the most important provisions for the interpretation of other provisions that receive substantial discussion in the case law and literature. For example, think of Article VII's relevance to determining what kind of legal instrument the Constitution is and how that is relevant to judicial review authority, the Preamble's use in constitutional interpretation, and the judicial use of extra-constitutional legal authorities for interpreting other provisions of the Constitution. If it is not obvious, I'll be happy to explain.

Posted by: Francisco Forrest Martin | Feb 29, 2008 12:12:13 PM

Why read it if you can simply listen to this:
http://www.law.uchicago.edu/constitution/index.html

Posted by: Positroll | Feb 29, 2008 11:51:44 AM

Like Michael Heise, I always begin my classes with both the Articles of Confederation and the Constitution. Although the points made above are excellent, I continue to feel that it is important to start by rooting ourselves in the constitutional text, to get some sense of its structure and organization. I do tell students that this will be pretty well their only opportunity to think long and hard about the text itself without all the encrustation of subsequent interpretations, and I certainly let them know that not every aspect of the Constitution is heavily judicially interpreted, or likely to be. I would like them to accept the Constitution as their patrimony at the outset, and think about their own individual responsibility to interpret it, to obey it, not obey it, agitate for its reform, etc., rather than just thinking of it as a vehicle by which arguments can be made to courts.

Posted by: Paul Horwitz | Feb 29, 2008 11:30:54 AM

It's almost more effective to read it after the fact.

Posted by: anonymous | Feb 29, 2008 10:48:59 AM

When I teach basic Constitutional Law I ask my students to read the Articles of Confederation and the U.S. Constitution for our first day of class.

Posted by: Michael Heise | Feb 29, 2008 10:46:16 AM

I took ConLaw at Georgetown with Prof. Viet Dinh (and ConLaw II with Sue Bloch), and neither professor told us to read the constitution. While I had read it in high school, I don't think I sat down and read the whole thing again until maybe halfway through my law school career.

Posted by: anonymous | Feb 29, 2008 10:05:06 AM

I can see asking students to read the whole thing, but these points wouldn't convince me that doing otherwise is outrageous -- nor that it should be done at the beginning of the semester. Students are not then in a position to evaluate whether it's been used or not, or whether you will be drawing on much of it during the course, so it's largely your say-so . . . and it may come across as a frustrating exercise in misdirection, particularly for those students who become interested in the many curiosities of the text.

I imagine this technique is particular to Con Law, and probably your most compelling arguments will relate more explicitly to that. I don't think it's common to assign first a proportionate chunk of the tax code, or the Restatement, and then say "but you'll see we won't be covering that at all" coupled with an aside that much of it has to do with unearned income or whatnot.

Posted by: Edward Swaine | Feb 29, 2008 9:28:46 AM

Students should probably read it at some point, but it's not clear that it's a valuable exercise until they've had at least a little bit of experience in seeing how it's been read by authoritative sources (courts). That is, assign it in Week 3, say, but not as the first assignment.

Also, I'm not sure that that students, particularly first years, will understand that your point 3 follows from, at least in part, your point 2 -- I hear a TON of complaints from fellow students that Con Law 1 spent WAY too much time on the Commerce Clause, at the expense of other stuff. I don't know if they realize how little other stuff there is.

Posted by: Jason | Feb 29, 2008 8:40:47 AM

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