I dont understand con law.. Forum

[goosey]

I have always hated history and I really dislike con law--I can't understand the cases, I cant get through the reading, I have no idea what the hell is going on.

I don't understand how this is a law school class...it feels like a history class.

please tell me this will change as the semester progresses

[Richie Tenenbaum]

I have always hated history and I really dislike con law--I can't understand the cases, I cant get through the reading, I have no idea what the hell is going on.

I don't understand how this is a law school class...it feels like a history class.

please tell me this will change as the semester progresses

It got better for me. Chemerinsky and reading random wiki articles about the various justices and cases helped.

[patrickd139]

You're welcome.

[Paichka]

Lots of people hate the first section of Con Law -- at my school, we break it out into two semesters. The first semester is National Power and Federalism, the second is Individual Rights. (This is a common breakdown) National Power and Federalism is a lot less sexy than Individual Rights, which is what people traditionally think of when they think of constitutional law. Gays! Inflammatory Speech! Abortion! Obscenity! Against that, questions of when Congress can constitutionally delegate legislative functions to a subordinate agency just seem kind of...meh.

But you're in the first couple of weeks -- you're probably still on Marbury v. Madison and its progeny, right? Try to look at it from the point of view that -- if Marshall had never written that opinion -- our entire system would look radically different than it does now. Our conversations about the role of the judiciary in social change? The role of lawyers in helping clients challenge discriminatory government action? It would all be different. So there's that to consider.

Plus, the rest of the questions you look at during Con Law I are really important -- whether a plaintiff can even bring a case to challenge a discriminatory law (standing!), whether a court can even get involved in deciding some unclear issue (political question doctrine!), whether states can challenge things that Congress has done...if you think about it, all of these questions crop up ALL THE TIME in some of the most interesting cases today. For example, one of the questions right now in the Perry v. Schwarzenegger case is whether the defenders of Prop 8 even have standing to challenge the district court's ruling on appeal. Most of the challenges being brought by soldiers who don't want to deploy (based on their belief that President Obama is not eligible to be President) are getting decided on other grounds because the military courts are refusing to rule on the constitutionality of his orders. That's political question doctrine in action. And the challenges to "Obamacare"? They're all based on whether Congress had the POWER to enact the law in the first place.

So, try to look at the subjects this semester in light of that -- it might make it more interesting for you. Also, get Chemerinsky.

TL;DR version: Con Law I is actually awesome! Get Chemerinsky.

[vanwinkle]

Most of these legal classes are about 1) what the law is and 2) the different ways it can be interpreted. Con Law is ultimately no different. The only real difference is the differences in interpretation are presented from a history perspective, because they arose at different periods in time.

Don't think about it as a history lesson. There are really two main "sides" to Constitutional Law interpretation; on one side is a bundle of similar related theories defining limited approaches (textualism, formalism, originalism, federalist narrowing) and on the other side is a bundle of related theories defining expansive/interpretive approaches (the "living Constitution", intent-based instead of text-based interpretation, purposive theory). It's important to know how a court with a majority on one side will behave, and how a court with a majority on the other will. History informs that, because by looking at history you can see how the court behaved on each side of the aisle.

For the most part, you don't need to know exactly what the Warren Court did and when, it's not a history lesson. But you do need to know that the Warren Court was very intent-based and that its decisions are more in line with modern justices who believe in a "living Constitution". You need to recognize that Lochner was a form of judicial activism and interpretation, but one that was actually very limiting and narrowing of federal powers because of the way it was applied. You need to understand the difference between Lochner using substnative due process to limit federal power, and modern decisions using substantive due process to expand Constitutional rights and limit the states. You need to understand that the modern court can often get a majority behind a textualist or originalist opinion, and that's why Warren-era ideas aren't likely to work today.

And most importantly, you need to understand that the Court is cyclical and that by looking back through history you can see how these approaches have played out before, and use that to predict how they'll play out with judges of each philosophy in the future (which is what you'll probably have to do on the exam). The history is important, but only as a way of informing your understanding of the different legal theories.

I wish I understood this before I started Con Law.

[ogurty]

^^ Amazing posts, you 2. I'm having trouble with con law too and it's nice to hear that it's more interesting than "The Life and Times of John Marshall", which basically was the entire first week.

[TruckerD]

I also appreciate the two posts above, and will probably be returning to them. I have the opposite problem to the OP, I have always loved history and could easily get bogged down in "what the Warren Court did and when" or "the life and times of John Marshall." My task in Con Law will be being able to separate what's still important from the (to my mind) interesting historical details, and be able to apply it to modern issues.
Thanks guys
Trucker D

[Black-Blue]

The best way to look at con law is to view this entire country as an institution that's based on one piece of paper (the constitution). The constitution is fundamental law -- and that is is why you're learning about it in LAW school. Interpretation of this law thus affects how this country is structured, and that's why you (pretend to) care.

[vamedic03]

Short version - it's just another common law class. The difference is that you only study one common law court - so rather than learn majority and minority rules, you look at the development of the rule in the one court and compare historical to modern rules. Much of it comes down to this: what level of scrutiny will the court give?

[ericng314]

BarBRI Chemerinsky lectures are the bomb. That's how you get the big picture

[blackdragons]

Our school separate the Con law into two session as well: Con law I + II. Finished Con law I last term, which vast majority of the time concentraded on the Federalism /state power, but we reserved 14th amendment and 1th amendment (where so-called the "Interesting issue" located) in Con law II. Con law I could be dry, but also covered many interesting issues. I think OP hated the beginning portion of the Con law I is understandable. However, when the course enter the commerce clause it will get better.
In addition, I believe getting the big picture is important. The majority of the course is about "Feds try to control the state, and state try to overcome the control." How to reach their goal will depends on the Con, and the Supreme court interpretation of the Con.
Good luck.

[Grizz]

Great post van. I'll keep that in mind.

[quakeroats]

I have always hated history and I really dislike con law--I can't understand the cases, I cant get through the reading, I have no idea what the hell is going on.

I don't understand how this is a law school class...it feels like a history class.

please tell me this will change as the semester progresses

It will depend heavily on your professor. Con Law can and probably should be the most difficult course you take before Federal Courts. It isn't primarily history, but that's because it isn't primarily any one thing. It's history, common law, social policy, politics, statutory interpretation, constitutional analysis, analysis of individual justice's jurisprudence, analysis of the Court's role in government and society, etc. It's by far the most intellectually satisfying of the first-year courses--where else do you have to keep more than four opinions, all arguing as if they read a different set of briefs, straight--but that's probably an issue if intellectual satisfaction isn't a priority. I'd recommend Chemerinsky's supplement. It will distill many of the difficult issues, but a lot depends on your prof. If he's worth his salt, he'll make things difficult enough that purely reading the supplement won't help much. Con Law involves some of the deepest questions our society faces, and really grappling with them requires a lot of effort.

[abudaba]

Dumb question perhaps but..

While I understand it is early in the course, my understanding of the material seems foggy. Our first day assignment was to read the Constitution in its entirety, and while I did the assignment, I didnt go through it painstakingly to get a solid grasp. I wonder if this may be causing the issues?

In other words, is it necessary to read and understand or even memorize the Constitution itself before going through the class or will it all come with time?

[20160810]

Conlaw is one of the few classes where I found the E&E to be incredibly helpful.

[quakeroats]

Dumb question perhaps but..

While I understand it is early in the course, my understanding of the material seems foggy. Our first day assignment was to read the Constitution in its entirety, and while I did the assignment, I didnt go through it painstakingly to get a solid grasp. I wonder if this may be causing the issues?

In other words, is it necessary to read and understand or even memorize the Constitution itself before going through the class or will it all come with time?

No. One interesting feature of Con Law is how much work a small number of clauses do. Most of your course will probably focus on the commerce clause and the 5th/14th amendments which you can read in under a minute.

[iagolives]

Dumb question perhaps but..

While I understand it is early in the course, my understanding of the material seems foggy. Our first day assignment was to read the Constitution in its entirety, and while I did the assignment, I didnt go through it painstakingly to get a solid grasp. I wonder if this may be causing the issues?

In other words, is it necessary to read and understand or even memorize the Constitution itself before going through the class or will it all come with time?

Yeah... Con Law isn't really that much about the Constitution. It's more about doctrines which are created by justices and they use certain phrases (e.g. "equal protection," "due process") as shorthand.

[vanwinkle]

Dumb question perhaps but..

While I understand it is early in the course, my understanding of the material seems foggy. Our first day assignment was to read the Constitution in its entirety, and while I did the assignment, I didnt go through it painstakingly to get a solid grasp. I wonder if this may be causing the issues?

In other words, is it necessary to read and understand or even memorize the Constitution itself before going through the class or will it all come with time?

No. One interesting feature of Con Law is how much work a small number of clauses do. Most of your course will probably focus on the commerce clause and the 5th/14th amendments which you can read in under a minute.

This.

Reading the Constitution, I think, is most educational for forcing you to recognize what it doesn't say than what it does say. For example, it doesn't explicitly say anything about a fundamental right to privacy at all. What you'll do over the course of the semester is read cases (like Griswold, which did find a right to privacy in its interpretation of the Constitution) and have to understand how that came about. The first part of that understanding is just realizing how little the Constitution actually says, and by corollary, how much of "constitutional law" is what the justices say about the Constitution rather than the Constitution itself.

So think of it that way. You read the Constitution to understand how little it says. Now you know to pay attention to the fact that most of the cases in the class are gap-filling, and the different approaches are really just different theories about how to fill in the gaps. That's the core of what Con Law is. Think of it as a study of the different theories of interpretation and gap-filling, and you'll understand what you're supposed to be looking for all semester long.

[quakeroats]

Dumb question perhaps but..

While I understand it is early in the course, my understanding of the material seems foggy. Our first day assignment was to read the Constitution in its entirety, and while I did the assignment, I didnt go through it painstakingly to get a solid grasp. I wonder if this may be causing the issues?

In other words, is it necessary to read and understand or even memorize the Constitution itself before going through the class or will it all come with time?

No. One interesting feature of Con Law is how much work a small number of clauses do. Most of your course will probably focus on the commerce clause and the 5th/14th amendments which you can read in under a minute.

This.

Reading the Constitution, I think, is most educational for forcing you to recognize what it doesn't say than what it does say. For example, it doesn't explicitly say anything about a fundamental right to privacy at all. What you'll do over the course of the semester is read cases (like Griswold, which did find a right to privacy in its interpretation of the Constitution) and have to understand how that came about. The first part of that understanding is just realizing how little the Constitution actually says, and by corollary, how much of "constitutional law" is what the justices say about the Constitution rather than the Constitution itself.

So think of it that way. You read the Constitution to understand how little it says. Now you know to pay attention to the fact that most of the cases in the class are gap-filling, and the different approaches are really just different theories about how to fill in the gaps. That's the core of what Con Law is. Think of it as a study of the different theories of interpretation and gap-filling, and you'll understand what you're supposed to be looking for all semester long.

Kind of, but a few issues:

Privacy is a bad example because it's essentially dead letter. It was largely Douglas' distaste for liberty-clause Substantive Due Process that gave us the right to privacy. Modern decisions just go the liberty-clause route and leave privacy for rhetorical points and non-lawyer discussions. Jamal Greene has a good piece on this: http://papers.ssrn.com/sol3/papers.cfm? ... id=1456026

As for the rest, I'd say it isn't so much gap-filling as interpreting what purposefully broad language means. For example:

Article I Section 8
The Congress shall have Power To... provide for the... general Welfare of the United States.
To regulate Commerce... among the several states
To make all Laws which shall be necessary and proper for carrying into Execution... all other Powers vested by this Constitution in the Government of the United States

9th
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

14th
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What is the general welfare and how does one provide for it? What is commerce and what constitutes regulation? What types of law are necessary and proper for powers vested by the Constitution? Is the 9th Amendment nearly useless or clear justification for an expansive fundamental rights jurisprudence? What is a privilege of citizenship? An immunity? If this clause wasn't correctly interpreted in 1873 can we simply clause shift its meaning to the liberty clause while leaving P or I to protect only travel? Is equal protection "the usual last resort of constitutional arguments," a prescription for equal outcomes across broad classes, or something in between?

[03121202698008]

Chimerinsky helped me a lot.

[let/them/eat/cake]

Lots of people hate the first section of Con Law -- at my school, we break it out into two semesters. The first semester is National Power and Federalism, the second is Individual Rights. (This is a common breakdown) National Power and Federalism is a lot less sexy than Individual Rights, which is what people traditionally think of when they think of constitutional law. Gays! Inflammatory Speech! Abortion! Obscenity! Against that, questions of when Congress can constitutionally delegate legislative functions to a subordinate agency just seem kind of...meh.

...

wish my school did this, and that I only had to take the first part. I had a difficult time stomaching the hodge-podge of forced reasoning and post-decision bolstering/rationalization that is the individual rights jurisprudence. And my teacher did maybe a week, TOPS, on the national power/federalism stuff, which I found to be a lot more compelling. It depends on the teacher.

Also, i'll +1 the Chemerinsky FTW.

[abudaba]

I'm gonna keep comin back to review these responses as the course goes on to keep the big picture in mind. Thank you so, so much for the info, it is very much appreciated

[tx2005]

Quakeroats nailed it - I loved Con Law because it was a combination of law, history, philosophy, and politics. If you're going through Marbury and the early Marshall cases and you're bored, that's understandable. They're dry, dense, and you've probably had things like "Marbury = judicial review" hammered into you since the 7th grade. The only thing I have to add is that, as the semester winds down, you should go back to those early cases and review them in light of what you've learned. You'll have more perspective and you'll see they aren't as cut and dry as they seem.

[Mickey Quicknumbers]

My syllabus/course outline alone scares the hell out of me. It feels like civ pro's uglier, meaner brother.

[Kobe_Teeth]

^^ Amazing posts, you 2. I'm having trouble with con law too and it's nice to hear that it's more interesting than "The Life and Times of John Marshall", which basically was the entire first week.

+1.