« U.S. News and Part-Time Program "Gaming" | Main | Why are non-profits, well, not for profit? »

Tuesday, August 26, 2008

Anyone Starting with Heller?

The editors of the widely-adopted Stone Seidman Con Law book have decided to frontload Heller -- and include it in their 2008 supplement to read in connection with page 8.  That is, before Marbury.  Is anyone out there who uses Stone Seidman following their suggestion?  I'm not this year: I don't have enough time to get through all I need to in Con Law I -- and all the hype associated with Heller notwithstanding, I can't justify putting it into the course, nor putting it first.  I understand how it could be pedagogically useful if I had the time but I am not ready to take the plunge.  You?

Posted by Ethan Leib on August 26, 2008 at 12:17 PM in Teaching Law | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Anyone Starting with Heller?:



To clarify: I don't think that Heller ISN'T a good case about interpretation (though it is really an originalism case) or that it ISN'T a good case to talk about federalism.

I think there are LOTS of good cases that could be used to introduce conversations about interpretation (constitutional and others), and Heller may be one of the best (though I'm not convinced of that, because it is so heavy on originalism and light on anything else). And I understand why someone might want to use it for those things.

For me, however, teaching a course effectively on the bill of rights (minus all the crim stuff) and the fourteenth amendment (minus due process), how do I NOT cover Heller there? Should I spend no time on guns and a class on the Quartering Clause? ;-)

Posted by: Hillel Levin | Aug 27, 2008 1:49:13 PM

I just came back from my first (2 hour) session of our combined, four-credit intro to ConLaw course and the assignment for today was:

(1) The text of the Constitution.
(2) An excerpt from Phil Bobbit on modalities of constitutional interpretation.
(3) An edited version of Heller that we used to practice reading a constitutional law case, practice identifying different modalities of constitutional argument, highlight some important themes.

I think, on balance, the class went well and that Heller was a nice addition.

Posted by: Andrew Siegel | Aug 27, 2008 1:41:16 PM

I agree, of course, that Heller is a "rights" case. But it's also a constitutional interpretation case. Not just in the sense that it introduces students to originalism, and by implication to other methods of interpretation, but also in the sense that it leads students to ask about the difference between meaning and implementation, about instantiating decisions with standards of review, and about institutional competence. It is also something of a federalism case, although I do think that takes a backseat to the rights issues. Still, lots of good reasons to teach this even in a con law I class. In my case, my con law course covers con law I plus due process and equal protection, so I can introduce students to both structure and rights at the outset of the class. Not that I've decided whether to use Heller; I just wanted to put the arguments for its use on the best footing.

Posted by: Paul Horwitz | Aug 27, 2008 10:17:14 AM

The supplements are all over the map on where they place Heller--anywhere from the beginning to the end.

I teach Con Law II at UGA (Con Law II being the "rights" course covering Equal Protection, Speech, Religion, and a few other greatest hits). Different profs are doing different things with Heller--some will cover it in Con Law I, some in Con Law II, and perhaps in different places in each.

I plan on doing Heller first in Con Law II. I understand why some folks are putting it first--in Con Law I, effectively--but I really think it is a "rights" case, and probably belongs together with speech, religion, EP, etc.

I am also thinking of having students read the whole thing, unedited. Thoughts on that?

Posted by: Hillel Levin | Aug 26, 2008 3:58:46 PM

I also start with the Articles and the document. I suspect I'll mention Heller here and there (as I did this morning) but I can't see assigning it. I just barely make it through what I need to without it. And it is a lot of reading for students, who are very overwhelmed with reading in Con Law I. I can actually see it as a better introduction to Con Law II (I am here assuming that Con Law I is structure and Con Law II is rights and liberties).

Posted by: Ethan Leib | Aug 26, 2008 2:16:45 PM

If Con Law I focuses on the federalism side of things, I think you should mention it but not start with it. It can be delved into more deeply in Con Law II and the individual rights cases.

Posted by: Matt | Aug 26, 2008 2:14:56 PM

As a student who just took Con Law I last semester, I have to say that I think it would have been foolish to teach Heller before Marbury. I also can't see how you can effectively teach the rest of Con Law I without just paying lip service to Heller.

Posted by: Justinian Lane | Aug 26, 2008 1:27:23 PM

Ethan, I don't teach con law until January, but I had been thinking about starting with Heller, although I hadn't seen the Stone Seidman supplement. I imagine lots of people are thinking about starting with it. It's good in that it allows us to think about a right without lots of doctrinal encrustation, to think about federalism, to think about standards of review, etc. My hesitation is that it forces students immediately into an originalist framework rather than thinking about a variety of modalities of constitutional argument. Of course, some of those modalities are present in the opinions and others could be brought out through discussion; still, I don't want to channel students into a particular framework so early. Nevertheless, it's a strong candidate for me, barring the inertial force of beginning with Marbury as I always do.

Actually, to be more accurate, I *begin* with the text of the Articles of Confederation and the constitutional text; I don't usually get to a case before the second day at the earliest, and I think all constitutional law professors should begin more or less with the text. In that context Marbury works fairly well. But I will indeed be considering Heller as the leadoff case.

Posted by: Paul Horwitz | Aug 26, 2008 1:15:36 PM

The comments to this entry are closed.