Constitutional Law I  

Robert N. Clinton

 

 Syllabus

Spring 2004

 

Communications
Room 237, Armstrong Hall

 

480.965-3501 (office)

602.276.2657 (home office)

 

Email: rclinton@robert-clinton.com

Course Website: http://law.asu.edu/homepages/clinton/ConLaw1/con1.htm

 

Secretary: Darelene Lester, 965-7715

Office Hours

Monday, Tuesday

10:30-11:45 PM

 

Note:  The instructor maintain an open door policy and students should

feel free to drop by his office at any time he is there.  The office hours are 

posted to try to keep him tethered to the office during those times.

 

Constitutional Law I governs the law surrounding the allocation of governmental power between federal, state, and tribal governments and the distribution of governmental authority within the federal government. It is a pervasive subject in the sense that such constitutional questions can emerge in such disparate areas of legal practice as immigration, corporations and securities, family law, criminal law, banking, and insurance. While the course does not cover individual constitutional rights (the subject matter of Constitutional Law II), questions of Congressional power to enforce various constitutional rights are raised as part of the course coverage. Furthermore, the framers of Constitution did not see the bright line our curriculum currently draws between allocation of power and individual rights questions, since many statements in the Constitutional Convention and the ratification documents suggest that the framers thought that the primary protection of individual liberty should be a constitution appropriately distributing and limiting delegated governmental authority, rather than a listing of rights of the type found in the Bill of Rights.

This course not only seeks to provide a survey of contemporary constitutional law, but also provides basic insights into American constitutional and jurisprudential history.  The reason for such attention to history involves demonstrating how constitutional law has changed over time, often with the ebb and flow of national intellectual, political, and economic history surrounding prevailing jurisprudential and economic trends and movements. That focus trains students not only how to understand past constitutional developments but how to anticipate future changes in constitutional doctrine in responsible to national political and intellectual trends.  Consequently, the legal, jurisprudential, economic and political history of the United States will play a prominent role in the course.

In addition, unlike some subjects, such as contracts, where stability and predictability may be more important values that the correctness of a particular decision, constitutional law constitutes a subject through which the nation has continued to play out and revisit the same political and philosophical debates that animated the formation of the Constitution. In constitutional law, it is often perceived that it is more important that a constitutional decision be "correct" than that it be historically consistent with prior precedent. Consequently, one aspect of this course will be examining the factors that propel such historical change, many of which cannot be found within the confines of a decided opinion.

The course will also examine the virtues and vices of the allocation of governing authority between federal, state, and tribal governments in a confederated or federal system, as compared to a unitary governing system like those of New Zealand or Israel.

Finally, the course will examine and discuss various interpretive approaches to constitutional decision making, examining, among other things, the importance of originalist history, post-adoption constitutional history, legislative history, text, economics, jurisprudence, policy and politics in the interpretation of the nation's written constitution.

The published books for Constitutional Law I are Stone, Seidman, Sunstein, & Tushnet, CONSTITUTIONAL LAW (4th Ed. Aspen) the latest SUPPLEMENT thereto, and a set of additional materials made available on the website noted above. Students interested in further reading in the subject matter covered by this course should begin with TRIBE, AMERICAN CONSTITUTIONAL LAW (3d. Ed. 2000) (Foundation Press).  Students are also strongly encouraged to purchase and read during the semester (preferably at the start) Joseph J. Ellis' Founding Brothers, available in paperback at most bookstores.

The syllabus, assignment sheet, and additional materials for the course have been posted to the website for this class, which is accessible from the instructor's website the address for which is located at the top of this syllabus. Students are expected to check the website and assignment sheet frequently since various materials will be posted to the website that will not be circulated in printed form (although anyone with access to a computer can print them out). Additionally new assignments may be posted to the assignment sheet in the event of newly decided cases. Thus, the assignment sheet posted on the site may change over the course of the semester to take account of any newly decided cases. Additionally, a link entitled Makeup Classes will post any necessary class cancellations and rescheduling.  The cover sheet and instructions to the final examination will also be posted to the website during the last week of class and all students will be responsible to have read it before the examination. 

In addition, the instructor has created a threaded discussion group for the course on myASU which is available from a link on the main course page.  Think of the discussion group as a class wide study group that you can access at any time you are near a computer.  It is primarily for your benefit and therefore students will only get out of the discussion group what they put into it.  All students are required to post at least 2 substantive comments regarding the assigned materials to the discussion group during the course of the semester in order to encourage active participation.  While students are encouraged to post questions to the discussion group either signed or anonymously, questions and anonymous posts will not be counted as discharging this requirement.  Students will not be graded on their postings but, since this assignment is a required class contribution, students will receive a failing grade for the course if they fail to discharge this responsibility to contribute to class discussion by posting to the class discussion group..

The use of the web for publishing course information and materials is intended both to save students money in printing costs and to encourage use and knowledge of internet skills to prepare law students legal practice in the computer age. Some students already have reported that familiarity with internet research and resources has become an important and, sometimes, essential job skill and qualification for some law firms and other organizations. Accordingly, the instructor expects all students in the course to become internet and computer proficient. If you have no background with computers or the world wide web, find another student in the class or a friend and have them show you. It is easy and painless! 

Since the instructor tends to make use of discussion and the socratic method, thorough class preparation is essential, as the progress of the course and the educational experience of your classmates are in great part dependent upon thoughtful classroom participation. Excellence manifested in class participation, both during class and on the course website discussion group, may be utilized by the instructor to boost grades of students to a maximum of 2 grade points where the student's performance on the final examination appears falls below the course median.

In order to follow class discussion and participate actively, a detailed and organized familiarity with the rationales, policies, and historical context, as well as the holdings, of the assigned case material will be necessary. The instructor assumes that students will not only have read but will have thought about and analyzed the cases thoroughly before they come to class. Some students find in constitutional law that they have trouble with this aspect of the course at first. If you experience such difficulties, the instructor strongly recommends that you return to briefing cases if you already have abandoned that process.  This course pays far more attention to the reasoning and rationales (in addition to holdings) of the cases than most first year courses.  Thorough understanding of that reasoning often can only be gained by actively briefing the cases.

Section 305(c) of the AMERICAN BAR ASSOCIATION STANDARDS FOR APPROVAL OF LAW SCHOOLS (the accreditation standards) provides in relevant part:

Regular and punctual class attendance is necessary to satisfy residence and class hours requirements. The law school has the burden to show it has adopted and enforces policies relating to class attendance.

Accordingly, students who regularly and persistently miss class may receive a failing grade for the course, a grade reduction or in cases of justifiable exigency, at the sole discretion of the instructor, have their registration involuntarily canceled for the course.

A number of students and faculty members also have commented on the disruptive effect of students entering or leaving classes while they are in session. Students should punctually arrive for class and remain during the entire class period so as to not disrupt class for others.

Since this course constitutes a required first year course, the instructor will only sign drop slips for students upon a showing of extraordinary circumstances, usually an unforeseeable and serious medical or family emergency, justifying such a drop.

The grade will be based primarily on the final examination except as noted above.  Any student who has made substantial qualitative (not quantitative) contributions in class and/or on the website discussion group may have their grade raised up to two grade points for class participation if the quality of their class contributions exceeds the quality of their performance on the final examination.

The final examination for the course will be closed book. The instructor will make available to students clean copies of the Constitution of the United States for use during the examination. In all likelihood the final examination for this course will be objective.

The instructor desires to assure that all students have equal access to information about the final examination. For that reason, he posts the instruction sheet to the final examination during the last week of class on the website and will not respond to individual oral inquiries about the nature, format for, approach, grading, or coverage of the final examination at any time. 

The progress of the course undoubtedly and intentionally will be slower at first and will accelerate as the semester progresses. The instructor anticipates covering the entire assignment sheet and students will be responsible for all required readings on it irrespective of class coverage. Since class progress and coverage are substantially dependent upon the level of class preparation and discussion, it obviously is to your own advantage and that of your classmates to prepare and to participate extensively in a relevant manner. The dates for coverage of material set forth in the assignment sheets represent estimates and may vary with the progress of the course, explaining the reason for the cushion at the end of the semester.

The course assumes that all students have a basic working knowledge of American political history and American government. If you do not, please brush up on these subjects. One good source to consult for this purpose in the two volume set Richard N. Current. et. al, American History: A Survey (6th Ed. 1983). For simpler, quick-reads, try Alan Axelrod, Complete Idiot's Guide to American History (3d ed. 2003) or Steve Wiegand, U.S. History for Dummies (2001).  Students interested in a reader on American constitutional history that is topically, rather than chronologically, organized, should consult Daniel A. Farber & Suzanna Sherry, The History of the American Constitution.  Students desiring a chronological constitutional history might review Alfred H. Kelly & Winfred Harbison, The American Constitution: Its Origins and Development (6th ed. 1983).   In addition, some useful web-based American history timelines are also available for those needing to refresh their recollections of American history. The Smithsonian Institution offers a detailed American history timeline keyed to their collections here. The Avalon Project at the Yale Law School has a document-orientated timeline available at this link.  Another detailed chronology of events in American history, can be found at this site.  A twentieth century American history timeline is also available at this site.  With these resources readily available, no student should feel they are at a disadvantage if their American history education was comparatively weaker or occurred too long ago to be easily recalled.  Just brush up on your own!

Material indicated in brackets in the assignment sheet either will be covered rather rapidly in class, often by lecture, or may not be discussed at all during class. Students are nevertheless fully responsible for the material contained in these sections.

No specific assignments have been made to the parallel pages of the Supplement to the Stone casebook. Please note that the Supplement is keyed to the pages of the casebook and students are responsible for reading the portions of the Supplement that parallel the assigned readings from the casebook.

The constitutional law literature included on the assignment as Recommended Further Reading does not constitute required reading. Rather it represents a starting (and now somewhat dated) mini-bibliography for students interested in further reading or who desire additional clarification on the primary materials they read.