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8806 - Advanced Constitutional Law: Theories & Interpretations
Professor: Edward B. Foley
Semester: 2012 Autumn
Second Writing Requirement? No
Professional Responsibility? No
Means of Assessment: Take-Home Exam
This course will address the major fundamental issues concerning the role of the Constitution in our system of law and government, as well as the role of the Supreme Court as the primary institution responsible for interpreting and enforcing the provisions of the Constitution. We will examine the leading theories of constitutional interpretation, including various forms of originalism, constructivism, and "representation-reinforcing" proceduralism. We will also consider theories of stare decisis in the context of constitutional adjudication: when is it appropriate for the Supreme Court to consider itself bound by its own prior interpretations of the Constitution, even if the Court now believes the prior interpretation is incorrect? We will address the role of judicial nominations in the transformation of constitutional law and the possibility of constitutional amendments by means other than the procedure set forth in the Constitution itself (Article V). The relationship between flexibility in constitutional law and predictability as a "rule of law" value will also be explored. Our readings will be primarily law journal articles and excerpts from books, although occasionally we will refer to specific cases to illustrate the application of theoretical principles. The course is designed to give students greater insight into the deep jurisprudential issues underlying U.S. constitutional law and thus goes beyond what can be covered in a first-year course on this topic. Depending in part on student interest, readings may also include contemporaries theories of justice and their relationship to constitutional law, including feminism, libertarianism, egalitarianism, and communitarianism.
The course materials listed above are for informational purposes only and should not be considered final. Students must check with the Registrar for a current list of closed courses.