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Back to Basics: Teaching Constitutional Law through Content Review

Back to Basics: Teaching Constitutional Law through Content Review

By Allison E. Butler  CSULB – College of Business, USC Gould School of Law

Exhibit A: Comparative Chart: U.S. And Italian Constitutional Provisions

Co-Authors: Allison E. Butler, JD and Laura Fabiano in collaboration with Fulbright Award 2019.  Allison E. Butler worked with Laura Fabiano with reference to the Italian/U.S. Comparative Constitutional Law.

  1. Introduction

Instructing constitutional law can be challenging given the broad scope of its content. Notably, the U.S. Constitution not only provides the federal government structure but also provides for numerous enumerated rights and guaranteed personal freedoms. While most instruction in law school is through case law, most students have little idea as to the actual structure and content of this document. This article provides a different approach by requiring students to obtain and assemble a U.S. Constitutional booklet, which is subsequently reviewed in a classroom. This exercise enables learners to recognize and find constitutional citations and provide an overall understanding of the contents of this vital historical document.

  1. The U.S. Constitution
  2. Examining the Booklet

The first requirement for this process is to mandate that students download and assemble a free U.S. Constitutional booklet.[1] One day, preferably in the beginning of the course, should be dedicated to reviewing the relevant constitutional provisions prior to actual case law studies. To provide a background on the subject and to begin the instruction, two optional videos can be viewed 1) British Library’s What is the Magna Carta[2] and 2) the History Channel’s The United States Gets a Constitution.[3] While there are numerous other clips, these links are highly effective in refreshing students’ knowledge and providing international students with a general background on the adoption of the document. This review technique can also be facilitated for a comparative or international law class with the students obtaining two constitutions and comparing the two. For example, see comparative chart of the Italian and U.S. Constitutions, set forth in Exhibit A.

  1. Articles and Amendments

While a review of the applicable provision is subjective, it is necessary to begin with a review of the federal government structure beginning with Article I – Legislative Branch of the Constitution. While discussion on the different legislative branch may be warranted, Section 8 of Article I provides the enumerated rights specifically designated to Congress, which with reference to business law includes, but not limited to, the following:

  • Commerce clause to discuss state powers. [4]
  • Copyright and patent clause to discuss intellectual property.[5]
  • Coinage clause for possible discussion on cryptocurrencies.[6]
  • Creation of inferior courts to discuss the federal court system. [7]

Section 10 of Article I provides for a brief discussion on freedom of contract that invokes examination of this clause as well as the substantive due process clause, including discussion on the Lochner Era, in which the U.S. Supreme Court continuously struck down numerous state statutes.[8]

Thereafter, Article II is discussed with focus on the Executive Powers. The primary objective here is the executive power to appoint “[j]udges of the supreme Court and all other Officers of the United States” with advice and consent of the Senate;[9] however, this section also provides discussion on current topics ranging from State of the Union to impeachment proceedings. Lastly, Article III establishes the Supreme Court and the judges therein. With the establishment of the three branches of government, students are directed to Article VI, Clause 2, discussing the Supremacy Clause of the U.S. Constitution.

Upon establishing the main content of the constitution, the Bill of Rights is examined, starting with the following:

  • Establishment Clause[10]
  • Freedom of Speech[11]
  • Search and Seizure[12]
  • Warrants[13]
  • Due process clause – federal[14]
  • Taking Clause[15]
  • Privacy[16]
  • State Powers[17]

These discussions also include a reference to amendments and how they apply to the Constitution leading to the adoption of the 14th and 15th amendment after the U. S. Civil War. The 14th amendment discusses how the due process clause incorporated many of the bill of rights as applicable to the state government as well as the equal protection clause. The 15th amendment illustrates race suffrage and its application solely to the male population but the adoption of the 19th amendment provides for sex suffrage.  Another provision worth discussing is the 28th Amendment, prohibition, and its relation to the 21st amendment repealing the prohibition of the transportation or importation of intoxicating liquors.  Lastly, discussion of the 26th Amendment provides age suffrage.

After full discussion on the various provisions and applicable case law, the pamphlets can be collected and returned to the students on the day of the exam, which is essentially an “open constitutional exam.” Sample questions can range from what articles establish the Supreme Court to what clauses provide for substantive due process. Moreover, questions can be of multiple-choice, essay, or short answer depending on the mandate of the overall course.

III. Conclusion

This type of constitutional review provides students with a broader perspective of this instrument of government. Learners learn to navigate the pages while observing the language adopted by courts such as “probable cause” or “supremacy clause,” observing that these phrases are nor fabrication of the courts but language of the constitution itself.  This learning technique provides the students with a solid base to begin further examination through case study.

EXHIBIT A

COMPARATIVE CHART: U.S. AND ITALIAN CONSTITUTIONAL PROVISIONS

Constitutional Provision United States Italy
Year 1787 1947
Legislature Article I Parte II – Titolo I – sezioni I e II (artt. 55 -82)
Executive Article II Parte II – Titolo III –Sezione I (artt. 92-96)
Judicial Article III Parte II – Titolo IV Sezioni I e II (artt. 101-113) ;

Judicial Review – Constitutional Court: Parte II, Titolo VI sezione I (artt. 134-137)

Supremacy Clause Article VI Art. 5
Reservation of State or Regional Rights Tenth Amendment Art. 117 ( more in general on regionalism: Parte II Titolo V artt. 114-133)
Freedom of Contract Article I, Section 10; Due Process of Fifth and Fourteenth Amendment Due Process Art. 41
Freedom of Religion First Amendment Art. 7 ; art.19
Freedom of Speech First Amendment Art. 21
Right to Privacy ·        The First Amendment; Third Amendment;

·        Fourth Amendment; Fifth Amendment;

Ninth Amendment.

The right to privacy is most often cited in the Due Process Clause of the 14th Amendment

Artt.13-15
Due Process – Procedure Fifth  Amendment (Federal); Fourteenth  Amendment (State) Artt.24-27;

Artt. 111-113

Due Process – Substantive Fifth Amendment (Federal); Fourteenth Amendment incorporates application to the States of Fundamental Rights Art. 2;

Parte I , Titoli I-II-III-IV (art. 13-54)

Taking Clause Fifth Amendment Artt.42-44
Voting Rights Fifteenth, Nineteenth and Twenty-sixth Amendment require that voting rights cannot be abridged on account of race, color, previous condition of servitude, sex, or age for those above 18. Parte I, Titolo IV (art.48-54)

Copyright © 2019. All rights reserved.

[1] See https://constitutionbooklet.com/ for free download and instructions.

[2] See, https://www.youtube.com/watch?v=7xo4tUMdAMw

[3] See, https://www.youtube.com/watch?v=x1YLoO9sHvI

[4]  Article I, Section 8, Clause 3.

[5] U.S. Const., Article I, Section 8, Clause 8.

[6] U.S. Const., Article I, Section 8, Clause 5.

[7] U.S. Const., Article I, Section 8, Clause 9.

[8]  U.S. Lochner Era wherein development of economic due process (14th and 5th Amendments) [1897-1937]; see also,  Arruňada, Benito and Veneta Andonova, Common Law and Civil Law as Pro-Market Adaptations, 26 Wash. U. J.L. & Pol’y 81 (2008); for recent case law on contract clause see, Sveen v. Melin, 584 U.S. ___, 138 S. Ct., 1815 (2018).

[9] U.S. Const., Article II, Section 2, Clause 2.

[10] U.S. Const., amend. I

[11] Id.

[12] U.S. Const., amend. IV

[13] Id.

[14] U.S. Const., amend. V

[15] Id.

[16] U.S. Const., amends., I, III, IV, IX and X

[17] U.S. Const. amend. X

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