Constitutional Law I(D) -- Spring 2026 -- Past Assignments

s Constitutional Law I(D) -- Spring 2026 -- Past Assignments

Constitutional Law I(D) — Past Assignments
Spring 2026
Professor Schnably

Assignments for the Week of:
January 12
Class recordings on Blackboard

Assignments for the week of January 13:

Tuesday, January 13:
Required: Please read the Course Policies before the first class.
We discussed the material in Section I.A.1. Consider:

The purpose of having you look at two other countries’ constitutions, along with that of the U.S., is to give you some sense of how constitutions can differ and how they can resemble each other.

While many different examples could be used, Canada is interesting because it is a neighbor with a common law background but a different constitutional history.
South Africa’s constitution is often cited as a model for modern constitution-drafting.

You don’t need to read the entire U.S., Canadian and South African constitutions word for word, but you should spend some time skimming through each of them to get a good sense of them. You need to do more than just flip through the pages, but something less than a word-for-word read.
There is no need to do any outside research on the constitutions. In fact you will be better off not doing that. The point of this look at the three constitutions is to start getting skilled at parsing texts and seeing what you can (and cannot) get from them.
As you are looking through the texts, think about a few basic questions:

Why have a constitution at all?
Must it 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 separately categories, or is it more the case that there is a spectrum with constitutions at one end and legislation at the other?
Why should a constitution be binding on subsequent generations?

Next think about the constitutions compare on the subjects they cover.

First, get an overall sense of the provisions of the U.S. constitution. Skim each Article (I-VII) to see what general subject it covers, and look through the amendments to see how it’s been amended over time. What groupings of the amendments do you see? The Bill of Rights is one -- do you see others? Should it matter in interpreting an amendment whether you see it as part of a group of related amendments? Would you group any of the amendments with any parts of the original constitution?
Once you’ve gotten a sense of the U.S. constitution in particular, you can begin to look more systematically through the Canadian & South African constitutions as well.

For the Canadian (Supp. 3-37) and South African (Supp. 38-122) Constitutions, identify the major divisions of the constitution and what major subject matters they cover.

Imagine that you were hired by a newly independent state as an expert in constitutional law, with the aim of providing advice in the drafting of a constitution. What subject areas do you think a constitution should cover? What things do you think do not belong in a constitution? If you were to suggest one of the three as a model, which would you point to?
Does any one of the constitutional texts seem more to you like what a constitution should look like than the others? Why? For example, should constitutional language be broad and sweeping? Should there be tables or schedules in constitutions? Why or why not? For each constitution, identify at least one provision that is of a type that you think either clearly does not belong in a constitution, or at least arguably does not (and consider the reason(s) for your selections).
In what respects, if any, does the text of the U.S. Constitution embody, reject, or not address the following values?

Human dignity, the achievement of equality and the advancement of human rights and freedoms.
Non-racism and non-sexism.
Supremacy of the constitution and the rule of law.
Universal adult suffrage, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.
Note: these values are taken from Section 1 of the South African Constitution, with some modifications. Is it desirable, in your view, to express basic values in a constitutional text? Are there other values you would include?

Compare the provisions of each of the three constitutions relating to the following issues:

The protection of rights

U.S. Const., Art. I §§ 9, 10; Bill of Rights; Amendments I-X (what other amendments would you include in this category?
South African Constitution, ch. 1 (§§ 1-6) & ch. 2 (§§ 7-39)
Canadian Const. Act, 1982, Sched. B, Part I (Charter of Rights and Freedoms)

Among other things, consider what types of rights each of the three protects.
The suspension of rights in case of emergency (sometimes called a state of exception)

U.S. Const. I § 9 cl. 2
South African Constitution, § 37, Supplement 46-47
Canadian Const. Act, 1982, Sched. B, Part I (Charter of Rights and Freedoms), § 33 (not quite a state of emergency provision but still providing for an “exception” to rights).
How do they differ? Which approach do you think is better? Should the U.S. adopt a provision like § 37 of the South African Constitution, Supplement 46-47?
The powers of the provinces/states vis-à-vis the federal/national government:

U.S. Const. Art. I §§ 8 and 10; Article VI cl. 2; and the Tenth and Fourteenth Amendments;
South African Const. chap. 6 (§§ 103-150), Supplement 64-75; see in particular §§ 146 & 148 (Supplement 74-75) and Schedule 4 (concurrent national/provincial powers) and Schedule 5 (exclusive provincial powers), Supplement 102-104.

Notice that Chapter 6 also sets out the structure of provincial governments, with a procedure for each to adopt its own provincial constitution, subject to the approval of the Constitutional Court.

Canadian Const. Act, 1867, Arts. 91-95, Supplement 14-17. Consider also Const. Act., 1982, § 52
Under each of the constitutions, looking solely at the text, would the federal government have the power to enact a law banning abortion? Protecting access to abortion? Would the state or local governments have that power? If the two conflicted, which would prevail?

What are the eligibility provisions for being president of the U.S.? Of South Africa? This is an exercise in parsing constitutional texts, so focus only on what you can get from the texts. “What you can get from the texts” may be answers or it may be questions about questions and other sources you would have to look into to answer the question.

See U.S. Const., Art. II § 1 cl. 5, and Amend. XXII; Art. I § 8 cl. 4; Fourteenth Amendment § 3).
Const. of South Africa, Arts. 42(3), 46, 47, 49, 86, 87, and 88.
If a majority of U.S. voters wanted to elect the following as president, would the U.S. Constitution permit it? If not, why should a majority of people be prevented from electing their preferred candidate?

Rep. Ilhan Omar (D. Minn) or Elon Musk, both of whom are naturalized U.S. citizens born in Somalia and South Africa, respectively.
Sen. and Secretary of State Marco Rubio (Florida), born in the U.S. to parents who at the time had Cuban citizenship.
The late Sen. John McCain, born in 1936 to U.S. citizens on a U.S. military base in the Panama Canal Zone. The Panama Canal Zone was controlled by the U.S. from 1903 to 1999, after which it reverted by treaty to full Panamanian control.
Sen. Ted Cruz (R. Tex), born in Canada to a Cuban citizen father and U.S. citizen mother, or Sen. Tammy Duckworth (D. Ill.), born in Thailand to a U.S. citizen father and Thai citizen mother.

Thursday, January 15: We discussed the material in Section I.A.2 and began our discussion of the material in Section I.A.3.

With respect to Section I.A.2 (Adoption of Constitutions):

In the case of each of the three constitutions (U.S., Canada, South Africa), just based on the texts you have in the Casebook and the Supplement, when would you say the constitution was written? Another way to put it is, in what time did the framers of each live?
What is your view of the South African Constitutional Court’s role in the drafting of the Constitution? See Supplement 123-126. One argument often used against invoking the provision in U.S. Const. Art. V for a constitutional convention is that a complete rewrite of the Constitution could put individual liberties at risk. If we were to draft a new national constitution, would it make sense to have the Supreme Court review it to make sure the new draft was at least as protective of rights as the current one?
The framing and adoption of the U.S. Constitution:

How did the structure of government under the Articles of Confederation differ from that under the Constitution -- in terms of separation of powers and of federalism?
What flaws did Madison see in the Articles of Confederation? What problems did Madison see with:

the status of the Articles of Confederation as a constitutional text?
how states interacted with each other?
the relationship between the states and the national government?
how states handled issues within their own boundaries?
the United States’ relations with other nations?

Were the Articles of Confederation adopted by the people of the United States? By the states?
Was the Constitution adopted by the people of the United States? By the people of each state? By the states?

What difference does this make to constitutional interpretation?
What difference does it make to constitutional interpretation that in practice “the people” was a subset of the population, excluding enslaved persons, Native Americans, women, and to a great extent those without property?

Was the adoption of the U.S. Constitution an illegal act? Why or why not?
Note that Madison’s memo says almost nothing about slavery (even though his memo includes a section on “Injustice of the laws of the states”). There is one reference to it in “Want of Guaranty to the States of Their Constitutions & Laws Against Internal Violence.” (Optional: you can find the entire memorandum here.) Note also that the word “slavery” appeared nowhere in the text as adopted by the Framers in 1787.

The debates over whether to ratify the Constitution:

In reading Federalist Nos. 10 and 51, pay particular attention to what Madison regards as a “faction”; what are the major sources of faction; what problems he says they cause; and how he proposes to address those problems. In what way does the structure of the Constitution as adopted in 1787 reflect his concerns?
What advantages would the federal government have over the state governments in the new structure, in Madison’s view? What disadvantages would it have compared to them?
Which branch of the federal government did Madison believe would be the most powerful? Is that still true today, in your view? What difference does it make?
Why was there no Bill of Rights in the original constitution?
By way of making some of the arguments between the federalists and anti-federalists more contemporary and concrete, consider a hypothetical situation today in which a group of doctors seeks to establish an abortion clinic in a small town in Rhode Island, a state in which abortion is permitted:

What would be anti-federalist arguments for employing a town meeting to decide this question?
What concerns might you expect Madison to raise against the anti-federalist arguments that the best way to decide it would be through a town meeting? What governmental forms would, in Madison’s view, be best adapted to deciding the question? What advantages would a central government governed by representatives elected from relatively large districts have over a town meeting?

Would it be consistent with a republican form of government to have a referendum on whether to amend the Florida state constitution to preclude local governments (such as cities and counties) from regulating guns?
The Federal Reserve Board is in charge of monetary policy, meaning that it exercises a major influence over interest rates and, through them, the state of the national economy. Members are appointed to 14-year terms by the President with Senate confirmation. The Board has traditionally operated with a considerable degree of independence from the President. Would it be desirable, in your view, to have the Federal Reserve Board put directly under the control of the President (in the same way that, for example, member of the cabinet are)? Would it be consistent with a republican form of government as described by Madison to do so? Should the answer to this second question matter one way or the other to your views on the first? Why or why not?
Note that Madison’s memo says almost nothing about slavery under the longest section on “Injustice of the laws of the states.” There is one reference to it in “Want of Guaranty to the States of Their Constitutions & Laws Against Internal Violence.” (Optional: you can find the entire memorandum here.) Note also that the word “slavery” appeared nowhere in the text as adopted by the Framers in 1787.

With respect to Section I.A.3 (Constitutional Revision):

Compare the procedures for amending the constitutions:

U.S. Const., Art. V
Canadian Const. Act, 1982, Part V (§§ 38-49), Supplement 33-35 and § 52, Supplement 35. See also Const. Act, 1982, § 35.1, Supplement 32.
South African Const., § 74, Supplement 56-57.
How do the provisions differ in terms of:

content
drafting style
Which of the three do you think is the best?
Can all or parts of a Constitution be unamendable? Should that be possible? Is it desirable? In this connection, consider Art. V of the U.S. Constitution, and Section 74 of the South African Constitution.
Consider the readings at Supp. 127-136. Would it be consistent with the U.S. Constitution to have a national referendum to adopt an amendment? Why or why not? Is the experience of other countries under their constitutions relevant, in your view? Why or why not?
Do you think the U.S. constitution today is in need of major, systematic revision? Why or why not?

In thinking about this question, consider anything you think is relevant, but at least consider:

Are there provisions in the Canadian or South African constitutions that you would like to see incorporated into the U.S. constitution?
Are there other amendments you would like to see made to the U.S. Constitution?
Note that Article V provides that the legislatures of three-quarters of the States can call a Convention for Proposing Amendments. Would you support such a call? Why or why not?

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