Classes up on iTunes

The class sessions for September 10, 15, and 17 are now posted to iTunes and available for download. Somehow the September 8 class was not recorded. I am not sure what happened, but likely I pressed the wrong button at some point. My apologies.

Next week's assignments

Here is the material I think, roughly, we will cover in Monday and Wednesday's classes of next week:

Monday (9/22): Section 5 of the Fourteenth Amendment, the spending power, and the first half of the Tenth Amendment material (Garcia and at least part of New York v. United States). We will probably talk about Problem 5 only briefly.

Wednesday (9/24): The remainder of the Tenth Amendment material (finishing New York and Printz), Problem 6 (on the Drivers' Privacy Protection Act), and an introduction to executive authority and the separation of powers. We will defer Youngstown Steel until Monday, Sept. 29.

Also, you will notice that our first assignment schedule ends next week, so I will post a second one (for weeks 7 through 12 of the semester) on ClaraNet next Thursday. If you need to read ahead before then, you can reference the order of the material on the syllabus.

Thanks.

U.S. asks for reversal in Kennedy v. Louisiana

The Solicitor General of the United States has just filed his office's brief at the request of the Court in Kennedy v. Louisiana, the case involving the imposition of the death penalty for child rape. And the SG has asked the Court to reverse its 3-month-old decision, arguing that the Court could not conclude that there is a national consensus against the practice when it has been approved by the national legislature and the President. You can find the SG's brief here.

Wednesday's assignment

Here is the agenda for Wednesday's class:

* Discuss Gonzales v. Raich
* Work through Problem 4
* Discuss the material on Section 5 of the Fourteenth Amendment and the Spending Clause

We will defer Problem 5, on the spending power, until Monday, September 22.

The recent class meetings will be up on iTunes some time this week, probably Thursday.

Thanks.

Constitution Day!

Tomorrow is September 17, the day in 1787 that the members of the constitutional convention signed the Constitution in Philadelphia before sending it to the Continental Congress and then onto the states for ratification. To mark the occasion, I and three other Santa Clara faculty will be discussing the upcoming Supreme Court term and the direction of the Roberts Court. The event will take place from noon to 1:00 in Room 139. Please join us if you are interested.

"Understanding" constitutional law

A number of you have confided in me, in various words, that you "don't know what is going on" in our class. When I have pressed, the point has become a bit more specific: many of you are unclear what you are supposed to be extracting from the material as we cover it. When pressed further, it has become yet more specific: many of you are unclear what you are supposed to be extracting from the material for purposes of the final exam.

This -- I want to make clear -- is a completely legitimate concern. Unlike some professors, I'm not bothered when students ask about the exam, or try to pin down more concretely my expectations. I understand that grades are important to many of you (though I think students tend to overestimate their real-world significance), and I think it is very important that I be as transparent as possible about how you will be evaluated. So this is all completely fair game.

But I should also say that my objectives for the class are broader than the types of things that are amenable to law school examinations. Broadly speaking, I have three pedagogical goals: (1) to convey a basic grounding in the fundamental tenets of constitutional law, useful to all lawyers in their practice, and in taking the bar exam; (2) to instill an understanding and critical awareness of constitutional law in its broader outlines, not simply in its blackletter rules, useful to you as future guardians of the legal profession; and (3) a still broader sense of constitutional history and politics, and the means of constitutional change, that I hope will be useful to you as well-educated citizens in our constitutional democracy.

In the first few weeks of the course, as we are establishing a framework for the material, goals (2) and (3) have received more emphasis than goal (1). As a result, there have been fewer "rules" that might be analogous to those you have studied in other classes. And this may be causing some of the uneasiness. As the semester progresses, goal (1) will increase in prominence, though I must admit, the nature of constitutional law is that such "rules" are rarely ever clear, and they are rarely more certain than the ideological leaning of the present Supreme Court.

I should also confess, though, that although goal (1) is the easiest to test, I think it is ultimately the least important of the three. Law school is obviously much more than bar prep; if it were not, you would be wasting a great deal of money on tuition. (Perhaps you feel that regardless.) What I hope a well-rounded legal education provides is a deeper level of comprehension and understanding, a way to contextualize and organize all the minutiae of legal rules that you will master through the course of your career.

Mind you, goal (1) is still quite important. But it is only one part of what I hope is going on in our class.

I'm not sure whether this actually allays any concerns. But it might at least help you understand where I am coming from, and why I have emphasized certain aspects of the material thus far.

Guaranty Clause vs. Equal Protection Clause

One of you asked the following, insightful question after class Monday night:

QUESTION: If the problem in Colgrove v. Green was that the Court could not discover a "judicially manageable standard" to malapportionment claims brought under the Guaranty Clause of Article IV, how did the standard become manageable in Baker v. Carr simply because the constitutional claim was grounded in the Equal Protection Clause of the Fourteenth Amendment? That is, is not the standard identically manageable or unmanageable regardless of which constitutional clause the claim is brought under?

ANSWER: I agree. I don't see how it is any more manageable. If the Court could manage a "one person, one vote" standard under the Equal Protection Clause, it is entirely opaque as to why they could not manage the same standard as an interpretation of the Guaranty Clause. (Certainly Justice Frankfurter agreed with this view, and thus thought the issue was settled.) Why did the result actually change? I would point to two reasons: (1) the composition (and ideological disposition) of the Court changed between 1947 and 1962, and (2) it became increasingly apparent that, if the courts did not intervene, the political process was not going to heal itself (and the dominant national political regime now strongly supported bringing more political power to urban areas). Why didn't the Court simply overrule Colgrove v. Green. I think it is simply a matter of risk aversion and the norm of stare decisis. If there is a way to get there without overruling precedent, the Court is likely to take that course. (Notice that this is why Congress justified the Civil Rights Act of 1964 as an exercise of its commerce power rather than as a use of its power under Section 5 of the Fourteenth Amendment.) The justices might also have feared what opening up the Guaranty Clause to justiciable claims would have meant in other cases that they could not yet anticipate.