Constitutional Theory

The guiding question of this course will be how we should think about the role of the U.S. Constitution in American law and American life. In considering this issue, we will address debates about constitutional interpretation (including both originalism and living constitutionalism), the nature and features of constitutional change within the American context, the role of federalism and the separation of powers in the constitutional scheme, and the nature of American constitutionalism as opposed to English and continental European models. We will tackle these debates in the context of some specific contemporary controversies about the Constitution, including: How do the civil rights movement and other social movements impact our understanding of the Constitution?; Does the Constitution reject a European-style inquisitorial process in favor of an Anglo-American vision of due process?; How important is consensus within the Supreme Court to establishing the legitimacy of constitutional meanings?; Why do we have nine Supreme Court justices, and; What is the Constitution, and how much does it include outside of the written document? Throughout we will be contemplating the extent to which our interpretation of the constitution depends on our vision of American democracy and the good society. Requirements for the course include regular class participation and either four response papers or a substantial research paper; students who take the research paper option will receive two or three units and 'R' credit. After the term begins, students accepted into the course can transfer from section (01) into section (02), which meets the R requirement, with consent of the instructor. Automatic grading penalty waived for R-credit papers. Special Instructions: This class is limited to 16 students by lottery. If applicable, openings will be filled from the waitlist in waitlist order. Four additional spots may be reserved for 2Ls at the discretion of the instructor. If determined by the instructor, four 2Ls will be admitted from the waitlist in waitlist order. Elements used in grading: Attendance, Class Participation; Response Papers or Final Paper. Cross-listed with English (ENGLISH 350D).