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Tuesday, December 08, 2009

Marbury in Introductory Constitutional Law

I am currently completing my syllabus for Constitutional Law I, the first of two required constitutional law courses at Boston College. The first, which we teach in the second semester of the first year, covers structural constitutional law while the second, which students may take in either their second or third year, focuses on civil and political rights.

Inspired in part by the work of Sanford Levinson, who was kind enough to visit my advanced seminar on constitutional politics last week, I have been debating the merits of when, and whether, to assign Marbury v. Madison.

I will keep Marbury in my preliminary syllabus, unlike Levinson, who does not teach Marbury in introductory constitutional law courses because of the "opportunity costs that must be paid in order to teach Marbury well." (Read more from Levinson here and here. A subscription is required for the first link.) 

But I've decided, tentatively at least, to depart from (what was once, still is, may always be???) the norm, which is to begin with Marbury. I will instead start with an historical and theoretical study of Article V, which prescribes the textual rules for amending the constitution. 

This, I think, will be a useful entrée into the larger themes of the course, namely federalism, the separation of powers, representative versus direct democracy, and the locus of sovereignty in the American constitutional order. It will also be an occasion to read some constitutional history, which adds great richness to the study of constitutional law.

I'm curious, though--do any Prawfs readers begin with Marbury? If yes, do you have a particular reason why? If you do not begin with Marbury, where do you begin?

Posted by Richard Albert on December 8, 2009 at 09:14 PM in Teaching Law | Permalink


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For my druthers, it would make a lot of sense to start with the incorporation cases and work from there. No contemporary law student has any doubt that the U.S. Supreme Court has the power of judicial review, and the hardest part of Marbury for someone who grew up in the U.S. and was interested enough in law to go to law school is explaining why anyone could imagine that it didn't.

Ideally, Marbury would be taught as part of a broader unit on the early U.S. Constitutional order that provides context explaining how different the U.S. House and Senate were at the time, how narrow in scope the early executive branch was, how the electoral process was conducted, what the state and federal criminal justice systems looked like. The unit could then carry that history through the revolutions that took place during the Civil War, Reconstruction and the post-Reconstruction errection of the Jim Crow and the SCOTUS cases that validated that regime like Slaughter House and Plessy. The entire early U.S. legal and constitutional order is so foreign that one piece standing alone doesn't make much sense, and unless students had a lot of U.S. social history as undergrads, it is largely unexpected. So much of what most law students assume has a constitutional basis that has always been the norm in the U.S. Constitutional order does not.

This historical unit probably belongs before the equality and race cases and before the commerce clause cases, but after some other line of cases, perhaps First Amendment rights, that has more relevance to students that they have more context for understanding at a time when even modern legal terminology and procedure are foreign enough.

Posted by: ohwilleke | Dec 10, 2009 1:55:29 PM

I always begin with the the English Bill of Rights of 1689, the Declaration of Independence, the 1780 Mass. Bill of Rights, the Articles of Confederation, excerpts from the Federal Farmer's essays, Federalist #10 and #51, and the text of the U.S. Constitution. These documents and their accompanying history take at least a week to cover.

The point is to show that constituting a government responsive to the governed -- a majoritarian project -- requires the entrenching of a lot of institutions against erosion by political actors. Judicial review is a side show in this primary job of constitutional entrenchment.

Posted by: Rick Hills | Dec 10, 2009 12:45:14 PM

I'm a current 3L, and my 1L ConLaw course, which I enjoyed immensely, started like this: (1) Introductory case and readings to introduce us to modes of constitutional reasoning (my prawf used Brown v. Board), (2) Commerce Clause and the enumerated powers, (3) Separation of Powers, (4) Equal Protection. Only after equal protection (probably over 2/3 of the way into the course) did we read Marbury.

As a result, we got through most of the semester taking judicial review and judicial supremacy for granted, and only after we had a good grounding in these major areas of ConLaw did we step back and really examine what the judicial role was. I think it let students speak much more intelligently on the subject.

Finally, after discussing Marbury, we ended with Substantive Due Process.

Posted by: Matt S. | Dec 10, 2009 10:00:24 AM

Personally, I start with McCulloch and Congressional Powers. It more directly relates to the themes of my Con Law I course. When we get to Judicial Power, we do Marbury and students have a better idea of why this matters.

Posted by: Todd Brower | Dec 9, 2009 10:16:09 AM

I also start with Heller, primarily because I think it's a great way to introduce students to different modes of constitutional argument and reasoning. I do Marbury next, but don't dwell on it.

Posted by: Joseph Blocher | Dec 9, 2009 9:55:47 AM

Richard, I teach a first-year, 4-credit "structure" course, and do it in (something like) a Barnett / Brest-Levinson "historical" course. So, I do teach Marbury, but only after several weeks. By the time the students read Marbury, they have read and thought about, e.g., (i) the Alien & Sedition Acts, (ii) the Kentucky & Virginia resolutions, (iii) the debate in Washington's administration about the Bank, (iv) the debates about the need for a Bill of Rights, etc. Lots of constitutional debate, in other words, *outside* the Court.

Posted by: Rick Garnett | Dec 9, 2009 9:21:34 AM

Our constitutional law course covers rights (with an eyee to the fact that the First Amendment is a separate course) and structure. I do Marbury on the last day of the course because the students are better prepared to make historical judgments about how well the decision has worked on the last day of the course than they would have been on the first.
I do rights before structure (an idea I got from Bill Cohen)(among other things it makes it easier to teach section 5 of the 14th and I like comparing the dormant commerce clause cases with the structure of argument in the equal protection cases).
I begin with Heller, move to cruel and unusual punishment, and then to Virginia Pharmacy to show different methods of constitutional interpretation and in the latter case to set up a comparison with Lochner.
I then move to substantive due process.

Posted by: Steve Shiffrin | Dec 9, 2009 8:22:03 AM

I use the Farber, Eskridge, & Frickey book, and follow its order. Accordingly, I begin with the cases from Dred Scott and Plessy through Brown, and then introduce Marbury. Professor Levinson is right, I think, that there is much cost to going into Marbury in considerable depth. But there are good points that can be made relatively quickly, e.g., that the constitutionality of statutes depends on the interpretation given to those statutes. My main point in using Marbury, though, is to introduce the theories of constitutional interpretation. "What is the significance of Marbury's focus on the written nature of the Constitution?" etc.

Posted by: Mike Dimino | Dec 8, 2009 11:21:06 PM

My professor started with Marbury. And did not leave it for the first week of classes. However, my professor was William Van Alstyne, author of one of the major articles on the case, so perhaps that was to be expected.

Posted by: Sean M. | Dec 8, 2009 10:32:13 PM

I switched last year. For some of the same introductory reasons, I begin with Heller.

Posted by: Paul Horwitz | Dec 8, 2009 9:48:02 PM

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