Constitutional Interpretation and Judicial Review*

Description:

Limited to 35 students.

Many of the provisions in the Constitution are broad and ambiguous. So what’s a judge to do when she finds herself presiding over a clash about individual rights, for example, and the controlling document – the Constitution – doesn’t give her a clear answer? Where do we turn when the Constitutional text is not clear?

This class will explore constitutional theory – that is, theories about how to interpret the Constitution. We will examine several leading theories of constitutional interpretation, with a focus on the problem of judicial review: how can we operate as a democracy and yet still leave the final power of decision in the hands of unelected judges with life tenure? Then, we will apply the lessons we have learned to major interpretive problems in contemporary constitutional law, from federalism to individual rights.

The class will be taught by Professor Holton, who will offer very different approaches to Constitutional law. This is an upper level class. Students will be expected to have a solid background in constitutional law and must be prepared to discuss and debate issues raised in the course. Students will write several short essays during the semester which will not qualify for a writing requirement.

Prerequiste: Constitutional Law I and Constitutional Law II

The American Bar Association accreditation standards require students to regularly attend the courses in which they are registered. Lewis & Clark expects students to attend classes regularly and to prepare for classes conscientiously. Specific attendance requirements may vary from course to course. Any attendance guidelines for a given class must be provided to students in a syllabus or other written document at the start of the semester. Sanctions (e.g., required withdrawal from the course, grade adjustment, and/or a failing grade) will be imposed for poor attendance.

*Typically offered every other year