Constitutional Analysis

Constitutional Analysis

Professor Laurence Tribe
Fall 2014 course
W, Th 1:10pm - 2:40pm in WCC Room 2004
3 classroom credits

This advanced 3-credit course will investigate issues cutting across both basic constitutional law courses (First Amendment; and Separation of Powers, Federalism, and Fourteenth Amendment), and crossing the divide between Constitutional Criminal Procedure and the rest of Constitutional Law. Only curricular and scheduling considerations have led those realms to be studied in separate silos – with the result that many important aspects of the subject often end up not being systematically covered anywhere precisely because they fit everywhere.

The issues we’ll explore include (1) methods of constitutional interpretation and implementation (including several distinct flavors of “originalism” and “living constitutionalism”) and ways of thinking about constitutional law in relation to culture and politics; (2) questions posed by the motives underlying challenged governmental actions and the messages those actions convey; (3) puzzles presented by relationships among government structure, the substance of government action, and the processes through which government choices are formulated and ultimately applied; (4) issues posed by protecting privacy while preserving safety and security in the face of rapid technological change; and (5) problems presented by asymmetrical rights and unwelcome (even if non-coercive) government offers, including “unconstitutional conditions.”

We will study those matters in the context of concrete disputes – both historical and contemporary – involving the fusion of liberty, equality, and federalism in contexts like gun rights, health care, contraception and abortion and same-sex marriage, religious accommodation; high-tech surveillance and data-mining; and sexual intimacy.

The materials will be a packet of judicial decisions and other documents, supplemented by occasional online assignments. There will be no required textbooks or casebooks.

The course will meet in two 90-minute sessions each week. Enrollment will be limited to 75.

Prerequisites: This course presupposes reasonable familiarity with the basics of American constitutional law as taught either in an undergraduate course broadly covering the subject, or in one or both of the two introductory HLS courses in constitutional law. Interested students will be expected to assure themselves that they meet this criterion; no prior approval by the instructor will be required for admission of JD candidates but will be required for LL.M. candidates. For any prospective LLM enrollees, please send a one-page statement, indicating why you would be a good fit for the class, to Kathy McGillicuddy at kmcgill@law.harvard.edu by July 31, 2014.

Because there are no specific course prerequisites for the Fall 2014 version of this advanced course, I have decided to fill gaps in the backgrounds of some 2Ls and LLMs who may opt to enroll – and to increase the odds that everyone will be starting from a shared baseline on the key issues – by devoting the first 90-minute class and some or all of the second (out of a total of 24 classes) to providing an overview of introductory constitutional law, which should be of special relevance to those who will not already have completed both (or perhaps either) of the introductory con law courses at HLS, but which I’ll design in a way that I hope adds value to, and avoid boring, those who have completed either or both.

Subject Areas: Constitutional Law & Civil Rights