Teaching the Law School Curriculum - Institute for Law Teaching ...

84 Constitutional Law
Introduction
A basic course in constitutional law covers the powers of government and, depending on the course structure,
associated limits, such as due process and equal protection. The course generally emphasizes Supreme Court case
law interpretations of the Constitution. To some students’ surprise, there is generally little time devoted to the
Constitution itself and its history.
The course is taught either as a first- or second-year subject and in most schools is required. While the Constitution
is a relatively brief document, the cases interpreting it are not. In deference to the subject’s voluminous
nature, schools allocate a variety of credit hours based on different course configurations. One common institutional
response to the quantity of material is to divide up constitutional law into several component courses,
rather than treat it as a monolithic whole. Schools might spin off the First Amendment as a separate course, treat
the two religion clauses within the First Amendment as a stand-alone course, or even parse the subject of constitutional
rights from constitutional powers and allocate three or four credit hours to each subject.
Some constitutional doctrines are cabined in courses outside of the constitutional law umbrella. In many
schools, for example, the basic course in criminal procedure is effectively taught as a constitutional law course
concerning the Fourth, Fifth, and Sixth Amendments. The Fourth Amendment segment emphasizes the prohibition
against unreasonable governmental search and seizure, the Fifth Amendment section focuses on the privilege
against self-incrimination, and the Sixth Amendment component covers the right to counsel.
A salient characteristic of constitutional law distinguishing the subject from the more traditional and historically
based courses such as property law is its protean-like growth. Each and every new term of the Supreme
Court yields a critical mass of modifications and refinements of existing law that must be assimilated into the
course. The continual expansion of the subject matter has a sweeping impact on how the course is taught. Some
favorite cases or doctrines from years past may play a diminished role in the reformulated course or be omitted
altogether. Consequently, constitutional law teachers become practiced in the art of updating and merging, especially
with the assistance of casebook authors, who offer regular supplements.
One consequence of the creation of new layers of constitutional law sediment is the impact on professorial familiarity
and complacency. Regarding familiarity, constitutional law teachers must regularly learn new cases and
place themselves in the position of once again reading cases for the first time. This exercise allows professors to
better relate to the learning process and to develop more accurate expectations of student performance. Regarding
complacency, constitutional law teachers must continually experiment with new material or with old material
in a repackaged form to make room for additional cases.
One illustration of the coverage conundrum lies in the Commerce Clause doctrine, which encompasses a broad
and historical array of cases stretching for almost two centuries. The doctrine includes numerous important cases,
providing illustrations of conflicts and contrasts in doctrinal development. The most recent seminal case occurred
in 1995 in United States v. Lopez, 514 U.S. 549 (1995), signaling another “must-read” shift in Commerce
Clause analysis. Yet, as compelling as it is to focus exclusively on Lopez and its progeny, the nineteenth-century
Supreme Court interpretations of the Commerce Clause remain extremely interesting and informative, yielding
numerous insights into the history of the United States. On the other hand, extensive coverage of Lopez and its
subsequent progeny is imperative to understanding the current analytical framework, forcing the professor to
decide how much time to devote to the “old” — and now outdated — Commerce Clause interpretations and how
much time to Lopez and its successors.
Perhaps because of the intersection of constitutional law with significant aspects of the culture, values, and
ideology of the country, the subject appears to be especially malleable in the hands of the professor teaching it.
The course undergoes transformations depending on the professor’s organization and treatment of the material,
whether the professor chooses to orient the reading list toward the approach taken by the different members of