U.S. Constitutional Law I(D)
Current Assignments
Spring 2026
 



Assignments for the week of January 19:

  • Tuesday, January 20: We will first complete our discussion of the material in Sections I.A.3 of the Syllabus (questions here) as well as Sections I.A.4 and I.B. We will then move on to Section I.C.1.

    With respect to Section I.A.4 (Incorporating Constitutional Amendments):

    • Notice how amendments to the U.S. Constitution are incorporated into the constitutional text: they are simply listed in order of adoption at the end of the 1787 text. There is no official version with the amendments incorporated directly into the original text and provisions that have been rendered inoperative deleted. (This led to some controversy in 2011; if you are interested, see NPR, House to read Constitution out loud again on Thursday, Jan. 5, 2017 (optional).)
    • As the article by Hartnett shows (Supp. 137-154), the U.S. came close to adopting a very different approach to amending the Constitution at the time the Bill of Rights was adopted. Do you agree with Madison’s statement that “form is of some consequence” in this respect (Supp. 138)? Note that Madison’s approach -- to interweave amendments into the main text -- was deemed “absurd” by Roger Sherman, whose approach was in turn “ridiculed” by John Vining. Is it irrelevant -- or revealing -- that Sherman was an opponent of adopting a Bill of Rights? What advantage is there to the non-interweaven approach the U.S. ultimately adopted? What difference would the interweaven approach have made to the Thirteenth Amendment? Is it desirable or deplorable that “the scars of history [would be] less immediately visible” under Madison’s approach? Is the “clutter of enactment and repeal” (regarding Prohibition) a serious disadvantage to the U.S. approach?

    With respect to Section I.B (Why should democratic societies be constrained by a constitution):

    • Consider these basic questions about any constitution:
      • Why have a constitution at all? Why should people today, in a democratic society, be bound by choices made by citizens long ago?
      • Must a constitution be in writing to function properly as a constitution? Are there any other characteristics something must have in order to be a “constitution”?
      • What distinguishes a constitution from legislation? Are they two completely separate categories, or is it more the case that there is a spectrum with the constitution at one end and legislation at the other?

    With respect to Section I.C.1, consider:

    • Under the Supreme Court Act, R.S.C., 1985, Supp. 165, did the Canadian Supreme Court have the discretion not to answer the question posed by the Governor in Council? What language in the Act governs this question?
    • On what basis did the amicus argue that Section 53 of the Act was invalid under the Constitution? What is the relevance of § 101 of the Constitution (Supp. 156? How did the Court respond to that assertion? Note that the Court cited U.S. and other foreign law in reaching its conclusion. Why was that relevant?
    • As you can see from the casebook, the U.S. Supreme Court decided early in its history (1793) that it had no power to render advisory opinions. What reasons did it give? Do you think the Court was correct?
    • Should the U.S. Supreme Court consider foreign law in interpreting the U.S. constitution? If the U.S. Supreme Court were to reconsider its decision of 1793, would the Secession opinion’s discussion of whether the Canadian Supreme Court can render an advisory opinion be relevant to determining whether the U.S. Supreme Court has the authority to render advisory opinions? Why or why not?
    • Do the texts enumerated in § 52 of the Constitution Act, 1982, exhaustively comprise “the Canadian Constitution,” according to the Court? (See para. 32, Supp. 156 of the opinion). Should the U.S. Supreme Court take a similar approach to interpreting the U.S. Constitution?
    • What does Curtiss-Wright have to say about the powers of the federal government? Do they derive entirely from the Constitution? Does the President have powers that are not grounded in the Constitution? Make sure you unerstand where, according to the U.S. Supreme Court, the President got the power to prohibit arns sales to the Chaco region in South America; the Court did not ground that power in the 1934 Joint Resolution (i.e., statute) of Congress, or in any provision of the Constitution. Does the reasoning in Curtiss-Wright imply agreement with the assertion in Reference re Secession of Quebec that the text of a constitution may not exhaustively define its content, and may include principles (and powers?) not included within the text? Why or why not?
    • What values does federalism serve, according to the Court? In what way are they similar to or different from the values that federalism serves in the U.S.?
    • The Court identifies “democracy” as a second principle. What does the Court say about the non-inclusion of any reference to “democracy” in the Constitution Act, 1867? Is the principle of democracy sufficiently specific to give guidance in interpreting the text of the constitution? How does it relate to federalism, according to the Court? Does it include a right to change the form of government? Was democracy the animating principle underlying the adoption of the U.S. constitution?
    • The Court identifies “constitutionalism and the rule of law” as the third principle. What does this mean, concretely, according to the Court? What is the relationship between democracy and the rule of law? What is the relationship between “majority rule” and democracy? Are they the same, both being limited by the rule of law? Does the rule of law define what a majority is? What does the Court say to the charge that the rule of law or constitutionalism is incompatible with democracy?
    • The Court identifies “protection of minorities” as the third principle. Much of Canada’s constitutional history relates to the presence of a large Francophone minority within Canada (but majority within Quebec), so the principle is in that particular sense specific to Canada. Would you identify a similar basic principle in the U.S. Constitution? As of 1787? As of 1865-1870 (when the Thirteenth, Fourteenth, and Fifteenth Amendments were adopted)?
    • According to the Court, what, legally, would a provincial secession be?
    • What significance does the Court attach to the fact that provincial secession is not mentioned in the Constitution?
    • If a referendum were held in Quebec and a majority voted to secede, it would have a legal effect under the Constitution, according to the Court. What would that effect be? Would it depend on how close the vote was or on how the referendum were worded?
    • Suppose there were such a referendum in Quebec, and after a majority vote to secede, negotiations on secession. Then the Quebec government asserted that in the negotiations the federal government and other provinces were not negotiating in good faith. Would the Court be available to determine whether that assertion were true (and give relief if it were)? Or would it be a “political question”?
    • Are there any circumstances under which a U.S. state could, consistent with the Constitution, secede from the U.S.?

  • Thursday, January 22: We will discusss the material in Sections I.C.2.a, I.C.2.b.i, and (if we have time) I.C.2.b.ii. I will let you know after class Tuesday whether we be covering Section I.C.2.b.ii.

    With respect to Section I.C.2.a, consider:

    • What accounts do Finkelman (Supp. 167-168) and Wilentz (Supp. 169-170) give of the absence of the word “slavery” from the Constitution? How do they differ?
    • Consider the following possible views of the Constitution (among many possibilities):
      • The Constitution was a pro-slavery document; it “provided enormous protections” (Supp. 168) for the institution of slavery with little or no political compromises by the southern states.
      • The Constitution was not only a pro-slavery document, “an agreement with Hell”: It made political activity by abolitionists under then-existing governmental mechanisms futile. See Supp. 170.
      • The text of the Constitution itself, while hardly antislavery, provided “powerful antislavery potential,” (Supp. 169), though Northern indifference to, tolerance of, or benefits from the institution of slavery over many years left that potential unrealized.
      • The Civil War and Reconstruction marked a fundamental rupture in the Constitution. We have had two Constitutions since 1787.
          Justice Thurgood Marshall: “Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago. ... While the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.”
          • From a speech in 1987, at an event marking the Bicentennial of the Constitution.
    • In responding to the position of Garrison and other abolitionists, Douglass sets out two questions:
      1. “Does the United States Constitution guarantee to any class or description of people in that country the right to enslave, or hold as property, any other class or description of people in that country?” See Supp. 172 (issue covered at Supp. 172, col. 2 to Supp. 176, col. 2)
      2. “Is the dissolution of the union between the slave and free States required by fidelity to the slaves, or by the just demands of conscience?” See Supp. 172 (issue covered at Supp. 176, col. 2 (beginning with “My argument against the dissolution of the Union ...”) to Supp. 177)
      We will focus mainly on the first question, but will consider also how the second issue might influence one’s position on the first.
    • With respect to the first question, pay close attention to his approach to constitutional interpretation, in several regards:
      • The role of what he calls a “plain and common-sense reading of the Constitution” (Supp. 176, col. 1)
        • What are the specific textual arguments he makes about the following? How does he deal with the absence of the words “slave” or “slavery”? Is his interpretation of them entirely textual or does he rely on additional modes of constitutional interpretation as well:
          • Art. I § 2 cl. 3 (the three-fifths clause)
          • Art. I § 9 cl. 1 (precluding abolition of the transatlantic slave trade before 1808)
          • Art. I § 8 cl. 15 (power to suppress insurrections and repel invasions)
          • Art. IV § 2 cl. 3 (Fugitive Slave Clause)
          • The Preamble to the Constitution
        • It will also be helpful to read Oakes’ analysis of Douglass’s arguments on these points. (Supp. 193, right hand column to Supp. 178-185)
      • The role of the intent of the Framers
        • What does Douglass mean by “intent”?
        • What if any role should intent play in interpreting the Constitution, according to Douglass?
        • What role did the text alone play, according to Douglass? Consider Oakes’ account of the difference in approach to interpretation between mainstream antislavery advocates and Douglass (Supp. 179, right hand column to Supp. 180)
        • Was Douglass entirely consistent in his approach to the proper method of interpreting the constitution? What does Oakes’ have to say on this point? See Supp. 179 (col. 2) to Supp. 181
      • The role of canons of construction in constitutional interpretation (or “the most beneficent rules of legal interpretation,” (Supp. 176)
        • To which particular canon does he appeal? What makes it relevant to constitutional interpretation? Are canons of construction part of the Constitution? External to it?
        • In his view, are canons of construction consistently deployed by the abolitionists? Consider his criticisms at Supp. 173, col. 2 (last para.) to 176, col. 1 (second para.).
      • The relevance of widespread social, political, and governmental practice in interpreting the Constitution.
        • Note his consistent distinction between “the chart” and “the course of the vessel,” Supp. 172; see also Supp. 173, col. 1 (America’s “laws are one thing, her practice is another thing”). In interpreting the Constitution, how does Douglass deal with the existence of the institution of slavery in the U.S.?
    • With regard to the second question:
      • What response does Douglass have to the position of abolitionists such as Garrison that any participation in electoral politics or government under the Constitution represented an unacceptable accommodation to a Constitution irredeemably corrupted by the institution of slavery?
      • Douglass sets out the first and second questions and addresses them in separate parts of his speech, but clearly regards them as interrelated. In what ways do the moral and political questions of how to counter the institution of slavery potentially bear on constitutional interpretation?
      • Consider again Justice Thurgood Marshall’s view that “[w]hile the Union survived the civil war, the Constitution did not. In its place arose a new, more promising basis for justice and equality, the 14th Amendment, ensuring protection of the life, liberty, and property of all persons against deprivations without due process, and guaranteeing equal protection of the laws.” Is his understanding consistent with Douglass’s? Different from it? In what ways?

    With respect to Section I.C.2.b.i (Heller), consider:

    • Whom (and in what context) does the Second Amendment protect?
      • What is Justice Scalia’s argument that the phrase “the right of the people” refers to an individual right? What is Justice Stevens’s reply? They both refer to other parts of the constitution where that phrase (or the phrase, “the people”) is used. What are those provisions? In deciding whether it refers to an individual right, is the placement of the Second Amendment in the Bill of Rights relevant?
      • What is the meaning of “keep and bear arms”? Is it limited to a military context or does it include hunting and personal self-defense? Here, too, consider Justice Stevens’s and Justice Scalia’s differing approaches.
      • What is a “militia”? What is the meaning of “well regulated Militia”? Do we need a “militia” today in this constitutional sense? Suppose we don’t. Is it ever acceptable to treat a part of a constitution as having fallen into desuetude? Of what practical significance is the Third Amendment today?
      • The majority distinguishes between a “prefatory clause” and an “operative clause.”
        • Does something “operative” intrinsically sound more weighty than something ”prefatory”? Is this distinction a constitutional one or purely grammatical? Is there any evidence that the Framers intended the two phrases to be given different weight?
        • Is “A well-regulated Militia, being necessary to the security of a free State” one clause or two? What does the majority say? On what basis?
        • What significance, if any, should be attached to the fact that the Second Amendment is the only amendment in the Bill of Rights with a prefatory clause?
        • What is the relationship between “a prefatory clause” and an “operative clause,” according to the Court? If A says to B, “since you need to check your e-mail, you may use my computer,” does that give B the right to use A’s computer to buy something on Amazon or check the browsing history? Is this hypothetical a fair comparison to the relationship as set out by the Court?
        • Suppose the Second Amendment read in its entirety as follows: ”The right of the people to keep and bear Arms shall not be infringed.“ Would that require any change to the majority’s ruling on the meaning of the Second Amendment? To the dissent’s?
      • The excerpts in the casebook do not make this entirely clear, but the predominant understanding of the Second Amendment throughout the Twentieth Century was that it did not protect individual rights, just the possession of firearms in connection with a militia. (In 1991, former Chief Justice Warren Burger called the view that it did protect individual rights a “fraud.” It’s optional, but if you want a fuller account of his views, you might be interested in a Parade Magazine article he wrote in 1990.) Should the Twentieth Century interpretation matter to how you interpret the Second Amendement today? Why or why not?
    • What kinds of “arms” are protected under Heller?
      • Handguns of the sort that were banned in D.C. did not exist in 1791. Yet the majority asserts that their possession is protected by the Second Amendment. What kind of approach to constitutional interpretation does this imply?
      • In light of Heller, may a state ban the possession of handguns in schools and college campuses except by police officers?
      • In light of Heller, which if any of the following weapons would you expect the courts to find to be protected by the Second Amendment? Whatever your answer is as of today, are there societal circumstances that might cause it to change in the future?
        1. Silencers. Note: A number of proposed bills would make it easier to purchase a silencer; some would preempt state laws regulating or banning silencers. See, e.g., H.R. 3228 (introduced 05/07/2025) (“Constitutional Hearing Protection Act”); David Kopel, The Hearing Protection Act and ‘Silencers’, Washington Post, 6/19/17.
        2. Bullet-proof vests.
        3. Binary Triggers:
            A binary trigger is a modification that allows a weapon to fire one round when the trigger is pulled and another when it is released - in essence doubling the firing capacity, firearms experts and weapons manufacturers say. The modifications are relatively inexpensive, running a few hundred dollars depending on the model. They are also a relatively new technology, first released in 2015 partly in response to federal regulators seeking to expand the scope of banning modifications that create automatic weapons.
            What regulations exist on binary triggers? They are legal in most states and at the federal level. Federal regulations don’t yet cover the sale of binary trigger modifications, said Robert Spitzer, a professor at the College of William & Mary Law School whose research focuses on gun policy and politics. “It’s a matter of technology outrunning regulation, which is not a new thing,” Spitzer said.
          The Miami Herald, The Fargo shooter used a binary trigger. Here’s what to know about the device that’s worrying police, Miami Herald, July 22, 2023.
        4. Semi-automatic weapons, which do not require reloading for each shot, but do require squeezing the trigger for each shot
        5. Automatic weapons such as machine guns, which fire continuously so long as the trigger is held down.
          • Optional Note: The National Firearms Act of 1934 banned machine guns. In 2017, a mass shooter in Las Vegas killed 58 people and wounded more than 500. He used semi-automatic weapons equipped with “bump stocks.” A bump stock is a device added to a semi-automatic weapon to allow it to fire continuously without repeatedly pulling the trigger. In 2018, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) classified semi-automatic weapons outfitted with a bump stock as machine guns. In Garland v. Cargill, 602 U.S. 406 (2024), the Supreme Court struck down the regulation. The ruling was not based on the Second Amendment. Instead, after a detailed review of the operation of machine guns, semi-automatic weapons, and bump stocks, the majority concluded that the text of the National Firearms Act of 1934 did not authorize the regulation.
        6. Rocket-propelled grenade launchers.
        7. Flamethowers
      • What uses or forms of possession are not protected, according to the Heller majority? Suppose, for example, you collect antique guns. They are in working order, but you have no plans ever to use them for self-defense or hunting. Would a law banning the possession of antique guns (out of concern, for example, that might endanger children living in the house where they are stored, or might be stolen and misued) violate the Second Amendment?
      • What uses or forms of possession are not protected, according to the Heller majority?
      • Is Heller right in assuming that someone who commits wire fraud (a felony) can be denied an individual constitutional right to keep and bear arms? Does this mean that other rights in the Bill of Rights (e.g., to be free from unreasonable search and seizure) may be similarly denied to felons?
    • Does Heller set out a standard of review applicable to challenges to particular firearms regulations?
      • What did the respondent (Heller) argue for? What did the majority hold? What did Justice Breyer argue for? Which approach do you think the Court should adopt? How persuasive do you find the case for his approach to the level of scrutiny?
    • How persuasive do you find Justice Breyer’s argument that the framers would not have anticipated the problem of modern urban-crime related dangers (CB 53)? How does this question relate to the level of scrutiny applied?

    With respect to Section I.C.2.b.ii (Home Building & Loan Ass’n v. Blaisdell), consider:

    • Note that the statute at issue in Blaisdell was a state statute. States have what is typically called “police power”: a broad power to enact statutes for the general health, welfare, safety, and morals of the population. It is this power to which Chief Justice Hughes makes reference at CB 826 (bottom), where he refers to the legislature acting to postpone foreclosures because having numerous foreclosures would be “hostile to public morals, or public health, safety or welfare.” This police power was, however, subject to limits imposed by the Contracts Clause; the federal constitution is the “supreme Law of the Land” under Article VI (CB xliii). As you can see, the Court found that the state statute did not conflict with the Contracts Clause.
    • The framers’ intent:
      • What was the purpose of the Contracts Clause, as contemplated by the framers?
      • Is the holding in Blaisdell consistent with the reasons the framers included the Contracts Clause? What economic conditions did they confront as they drafted the Constitution?
      • Did the framers have an intent as to whether “original intent” should play a decisive role in interpreting the Constitution? Does the language of the Constitution -- for example, of the Contracts Clause itself -- provide any guidance on this question?
      • Note that Chief Justice Hughes, writing for the majority, takes it as obvious that the framers’ intent is not an adequate guide to interpretation; writing in dissent, Justice Sutherland takes it as obvious that the framers’ intent is decisive. What does it say about constitutional interpretation that members of the Court could regard such opposed positions as obvious?
    • What role, according to the Court, does the fact of a grave emergency like the Depression play in constitutional interpretation? What reasons does it give for its view? Was the presence of emergency conditions relevant in any way to the Court’s holding?
    • If Chief Justice Hughes’ approach to constitutional interpretation is correct, how much difference is there between an unwritten constitution and one embodied in a text?
    • Was Blaisdell correctly decided, in your view?
    • Consider the federal moratorium on certain tenant evictions that was included in section 4024 of the CARES Act of 2020 -- a federal statute. The federal government does not have the broad police power that states have. In theory, at least, the federal government has only those powers that are set out in the Constitution. Look through the text of the Constitution and try to answer this question: What provision(s) of the Constitution would empower the federal government to put a moratorium on evictions? And what basis or bases in the Constitution might a landlord have for challenging the constitutionality of section 4024? Note that it could not be the Contracts Clause, because that section applies to states, not the federal government (see Art. I § 10 cl. 1 (“No State shall ... pass any ... Law impairing the Obligations of Contracts”)).
      • If confronted with these questions, should a court take into account that the country was experiencing a pandemic? Why or why not?