W.B. Fisch                                                                                                                                                                    Fall 2011


Introductory and Housekeeping Information, Including Attendance Policy

The following information is the sort which used to fill up my first lecture, but I have found that it doesn't stick particularly well when delivered orally, so it is now a handout to be read before (and maybe also after) the first class period. I will not take up class time with it – beyond brief remarks at the beginning of the first class -- unless there are specific questions.

Nature and Format of the Course

(i) This will be a straightforward 4-hour course, with examination at the end which will itself run for 4 hours. The examination will be closed-book, with a pretty traditional format.

(ii) Our subject is the Constitution of the United States; while state constitutional law has become an increasingly important factor in daily practice -- not least because many people have perceived that the U. S . Supreme Court is less protective of certain interests than it used to be and therefore state courts must be resorted to for help -- there isn't time to deal with that in this course, in view of the considerable variety which the 50 state constitutions present. State constitutional law is in fact now a topic of frequent discussion at annual meetings of the Association of American Law Schools (the law teachers ' organization) as well as a matter of constant interest to practitioners, and we now have a separate course on the subject in our curriculum. We will look here at some of the relationships between state and federal constitutional law, but principally as they reflect on the jurisdictional limitations of the federal courts.

(iii) Our principal sources of guidance will be decisions of the U.S. Supreme Court, although we will also consider the role which other branches of the federal government, lower federal courts and state courts play in the development of federal constitutional doctrine. We concentrate on the Supreme Court simply because it has the last word on interpretation of the Constitution -- if and when it gets around to saying it - - and because time doesn't permit exhaustive consideration of other sources.

(iv) I will be calling on people in class; I'll divide up the seating chart into groups of 6 or 7 people and allocating each assignment in the syllabus to a group. That will provide distribution and advance notice, will help assure that at least somebody will have read the assignment before class, and will help me get to know you a little better. The group assignments will begin Monday, August 29, 2011.


Coursebook: Cohen, Varat, and Amar, CONSTITUTIONAL LAW (l3th ed. 2009, Foundation), along with their 2011 Supplement. Most of the notes refer to other cases, historical materials or occasionally some secondary literature; the book has relatively few professorial questions, and leaves it mostly to us to bring out the reasoning of the principal cases and highlight the different theoretical positions from which the cases are evaluated by critics and scholars.


As you know, our law school rules require attendance, in accordance with accreditation requirements. I will be taking attendance by sending a class list around every day for you to initial. You must initial the sheet or you will be counted absent.

My specific attendance sanctions are as follows:

  • •Unexcused absence on a day on which your group is up -- including one on which your group continues to be up, even if you have already been called on for some part of that assignment -- will result in a 2-point deduction from the final grade otherwise earned.
  • •After 15 absences of any kind, excused or unexcused, you are subject to dismissal from the course. This means that the maximum permissible number of absences is 14.
  • •If you are not on the seating chart, you are not in the course. If you want to change your seat after I have posted the group assignments, you must get my agreement.
  • •Taking of daily attendance will begin Wednesday, August 24, 2011


Recommended secondary literature

(i) Comprehensive works

  • Nowak & Rotunda, CONSTITUTIONAL LAW (7th ed. 2004) -- the West Hornbook on the subject, good description of the leading cases with some opinions and references to other secondary literature, traditional hornbook format.
  • Chemerinsky, CONSTITUTIONAL LAW: Principles and Policies (Aspen, 2d ed. 2002) the newest of the one-volume treatises, excellent analysis and some critical evaluation of the leading cases and issues, good competition for Nowak & Rotunda.
  • Tribe, AMERICAN CONSTITUTIONAL LAW vol. 1 (3d ed. Foundation Press, 2000) - a much more original analysis of the cases, attempting to provide a framework for analyzing and predicting past and future cases, using fundamental concepts and models; less helpful than Nowak, et al., as a study guide, perhaps, but more interesting as a stimulus for further thought; Tribe was a clerk for Justice Stewart in the Warren years, as well as for Justice Tobriner on the California Supreme Court. Vol. 1 of the 3d edition covers structural issues (judicial power, executive and legislative powers, separation of powers, federalism) and begins individual rights. For the rest of individual rights, the 2d ed. 1988 remains useful, but will be replaced by the 3d edition vol. 2 in due time.
  • Wright, FEDERAL COURTS (West Hornbook, 5th ed. 1994, with pocket parts) much of what we will be discussing in the first part of the course, dealing with the judicial function, is dealt with in helpful fashion by Wright.

(ii) Some Theories of Constitutional Interpretation (mostly for judicial consumption)

  • John Hart Ely, DEMOCRACY AND DISTRUST (1980) -- finds an overarching principle in the Constitution itself, namely the maximization of participation in the political process, which he believes can guide interpretation of the more open-ended clauses.
  • Jesse Choper, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980) -- elaborates on limitations for the scope of judicial review to be derived from a sound concern for the Court's "institutional capital", its power to persuade when other institutions have control over armies, police forces and revenues.
  • Michael Perry, THE CONSTITUTION, THE COURTS AND HUMAN RIGHTS (1982) -- defends a role for the Court of moral "prophet" to society and government; reviewed by a UMC constitutional law teacher whom modesty forbids me to name -- 48 Mo.L.R. 837 (1983).
  • Phillip Bobbitt, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION (1982), and CONSTITUTIONAL INTERPRETATION (1991): in the first volume, Bobbitt identifies and explains six fundamental forms of constitutional argument, based on actual usage by the Justices and by scholars persistent enough to give the forms legitimacy (see my readings on the theory of interpretation, syllabus assignment #6); in the second, he argues that there is and should be no general "rule" for resolving conflicts between the results called for by the different forms, but rather the conscience of the decision-maker, the sense of justice, provides the resolution in each case
  • Laurence Tribe, CONSTITUTIONAL CHOICES (1985) -- collection of essays on various problems of interpretation, generally reflecting a liberal activist perspective.
  • Robert H. Bork, THE TEMPTING OF AMERICA (1990) -- popular, polemical but effective defense of the "original understanding" principle, that the Court should only apply those values to the interpretation process which have been incorporated into the Constitution by the Framers; also defends his own candidacy for the Supreme Court and attacks the methods of those who brought about his rejection by the Senate.
  • Antonin Scalia, et al., A MATTER OF INTERPRETATION (1997) -- an essay by Justice Scalia with commentary by 5 noted constitutional and legal scholars, all edited by Amy Gutman; Scalia expounds a general theory of interpretation of legal texts which he calls "textualism" or “textualist originalism”, which he applies both to statutory and to constitutional texts, and which calls for discernment and application of the original meaning of the words in the text. He is critical of the "common-law" mindset of Anglo-American judges as interpreters of texts, because that mindset focuses on the optimum solution for a current problem and therefore usurps the legislative role, as well as of those who claim supremacy for the "intent of the drafters/framers", because they focus on the subjective intent of a limited range of actors rather than on the text that they adopted and its meaning in context. Each of the commentators presents a different mix of agreement and disagreement with Scalia's argument; while the discussion is not limited to constitutional interpretation, it is particularly valuable for it
  • Randy E. Barnett, RESTORING THE LOST CONSTITUTION: The Presumption of Liberty (2004) - a libertarian approach to interpreting the constitution, starting with the original meaning of the text in Justice Scalia's sense (not the subjective intentions of the framers, but the meaning of the words they used in historical context) while acknowledging that there are gaps and uncertainties in that meaning, and proposing a presumption of liberty (the absence of governmental power to restrict liberty) rather than a presumption of constitutionality (the existence of governmental power to restrict liberty) as the proper principle for gap-filling

Each tries to develop a theory on the basis of which judicial review can be justified in some degree or other; we will be discussing this issue in the first several sessions on the judicial function.

(iii) Historical Works

  • One set of references in the literature is especially helpful in getting the institutional history behind the most prominent Supreme Court decisions: the Oliver Wendell Holmes Devise History of the Supreme Court, which has now produced the following volumes:
    •  I. Antecedents and Beginnings to 1801, by Julius Goebel
    •  II. Foundations of Power: John Marshall 1801-1815, by George Haskins and Herbert Johnson
    •  III & IV. The Marshall Court and Cultural Change 1815-1835, by G. Edward White
    •  V. The Tanev Period (1835-64), by Carl B. Swisher
    •  VI & VII. Reconstruction and Reunion Parts I and II (1864-88), by Charles Fairman
    •  VIII. Troubled Beginnings of the Modern State (1888-1910), by Owen M. Fiss
    •  IX. The Judiciary and Responsible Government (1910-21), by Alexander Bickel and Benno Schmidt
    •  XII. The Birth of the Modern Constitution (1941-53), by William M. Wiecek (formerly of the MU history department)
  • Kurland and Lerner, THE FOUNDERS' CONSTITUTION, 5 vols., Chicago 1987 - excerpts from the debates at the Constitutional Convention of 1787, the Federalist and other contemporary publications and discussions, arranged according to the provisions of the Constitution to which they relate and accompanied by scholarly comment from the editors. There is now a web version of this collection at http://press-pubs.uchicago.edu/founders/.
  • Farber & Sherry, A HISTORY OF THE AMERICAN CONSTITUTION, 2d ed. St. Paul 2005 -- a more concise collection of excerpts, description and commentary on the two main founding periods -- 1787-1791 (original constitution and bill of rights) and 1865-1873 (the "Reconstruction Amendments" ##13-15) -- meant for student use, and organized on a more broadly topical basis. These historical materials are complemented by chapters on the Supreme Court's use of history (excerpts from more recent opinions of the justices) and on the "Originalism Debate" (analytical commentary, textual evidence and excerpts framing the principal arguments).
  • Cogan, THE COMPLETE BILL OF RIGHTS (Oxford U.P. 1997) comprehensive documentation on the process of adopting the Bill of Rights in the First Congress of 1789.
  • Another historical work with a different format, namely analysis of the Court's constitutional decisions from the beginning, arranged under each Chief Justice by major topic, is David Currie, THE CONSTITUTION IN THE SUPREME COURT: The First Hundred Years 1789-1888 (1985) and Id.: The Second Century 1888-1986 (1990).
  • Professor Currie then published a second series of historical analyses, this time of debates and decisions about constitutional issues in Congress: THE CONSTITUTION IN CONGRESS, published by the University of Chicago Press. Five volumes appeared covering the pre-Civil War history: The First Congress, 1789-1791 (1994), The Federalist Period 1789-1801 (1997), The Jeffersonians 1801-1829 (2001), Democrats and Whigs 1829-1861 (2005) and Descent into the Maelstrom 1829-1861 (2005).

The Constitutional Text

I asked you to read the Constitution before the first session, from front to back -- to what purpose?

(i) of course for a lawyer this is the obvious starting place -- what does the Constitution itself have to say? Note its basic structure:

I. Legislative Power

1. creation of institutions

2. eligibility for election to, terms of, and officers of the House of Representatives; impeachment

3. eligibility for election to, terms of, and officers of the Senate; trial of impeachments

4. elections

5. internal organization

6. compensation and immunities of members

7. procedures for legislative action

8. substantive powers

9. limitations on powers

10. limitations on the states

II. Executive Power

1. Presidency, and electoral system

2. powers of the president: commander in chief, superior to executive departments, pardons, treaty-making, nomination and appointment of officers,

3. relationship to Congress, receipt of ambassadors, execution of laws

4. removal by impeachment

III. Judicial Power

1. Supreme Court, lower courts, tenure

2. scope of judicial power

3. definition of treason, and requirements for conviction

IV. The Union

1. full faith and credit, one state to another

2. status of individuals in relations among states: privileges and immunities extradition, slavery and servitude

3. admission to the union, and federal territory

4. "guaranty clause": obligations of union to the several states (republican form of government, protection against domestic violence)

V. Amendment of the Constitution

VI. Effect of Adoption of the Constitution

1. continuity of debts and obligations of national government

2. supremacy clause, of federal law over state

3. oath of federal office

VII. Manner of Ratification of the Constitution


(a) I-X the Bill of Rights (1791)

(b) XIII-XV, the Reconstruction Amendments (1865-70)

(c) all others – including the XXVIIth, which was proposed in 1789 but not adopted until 1994! -- adopted one by one, each with a specific purpose and background

(ii) in general, it is a masterpiece of terseness -- no wasted words, central ideas pithily stated. Aside from being a pretty good model for effective English style, this characteristic makes interpretation absolutely unavoidable if the enormous variety of fact situations giving rise to dispute is to be handled.. After more than two centuries of interpretation, it sometimes seems that the original language of the document has become superfluous, and that the subsequent gloss controls -- but from time to time there is a movement among constitutional scholars, lawyers and judges to try to get back to the original language, rethink the intervening interpretations, and restore our sense of continuity with the framers; we have been in such a period for the last few decades.

(iii) does it need revising? There was a movement at work not too long ago, which seemed to have a fair chance of success into the 1990's, to call a constitutional convention (Art. V, clause 2) for proposing amendments -- ostensibly to consider a Balanced Budget amendment, but without any clear controls in the Constitution itself over the scope of the Convention. The 1787 Convention was itself in many eyes a runaway convention, called to consider amendments to the Articles of Confederation but producing an entirely new constitution with dramatic changes in the federal structure. The proponents of a convention might obtain the two or three additional state calls required, or Congress -- fearing a runaway convention -- might propose the amendments being used as a basis for the call; but for the moment the pressure seems to be off.

Some other arguments for change in the text of the Constitution itself:

(a) to reduce the impact of campaigning on the conduct of the Presidency, make the office a 6- year non-renewable term

(b) give the President a line-item veto (Congressional legislation did this, effective 1-1-1997, but was successfully challenged on separation-of-powers grounds in a Supreme Court opinion which we will be reading)

(c) impose a single-subject requirement on Congress, to stop the unlimited rider practice

(d) limit the number of terms members of Congress can serve, to reduce the impact of the seniority system

(e) limit the terms of federal judges, or require retirement at a certain age

(f) after the 2000 presidential election: get rid of the electoral college, to prevent someone (again) losing the popular vote but winning the presidency

(g) currently: require a balanced budget