This course examines the nature and scope of American constitutional principles as developed in history: the philosophical foundations of individual rights, modern civil rights law, federalism, the jurisdiction of the federal courts, the separation of powers, executive power in foreign and domestic policy, the taxing power, and the commerce power.
This course will employ the case method of law school, but will also incorporate methods and perspectives seldom found in law schools today, namely, understanding the nature of constitutional interpretation as it emerged from the natural law and English common law traditions, how the art of jurisprudence has evolved and become controversial in modern times, and how the other two branches of the federal government have affected our understanding of the Constitution. The course will seek to illuminate the myriad aspects of the Constitution in an unusual way: we’re going to read it like a book.
Among key questions the course shall consider include: How does the work of judges differ from that of elected officials? What principles ought to guide judges in interpreting the law? Was the establishment of “judicial review” a logical corollary of having a written constitution, as Chief Justice John Marshall argued, or was it a “power grab” by a Federalist-dominated federal judiciary? What role do the political branches play in interpreting the Constitution, and to what extent should judges defer to their constitutional judgments? What is the proper balance between national powers delegated by the Constitution and the powers reserved to the states by the same document? What is the “police power,” and how it is inferred from the logic of the Constitution? Above all, is it necessary to go beyond the Constitution to understand it?
Instructor: Steven F. Hayward
Email: steven.hayward@berkeley.edu