Academic journal article
By Braveman, Daan; Banks, William
Constitutional Commentary , Vol. 17, No. 2
For fifteen years and four editions, our casebook(1) has differed from the mainstream canon(2) in two respects. First, we give relatively greater emphasis to the structure of government issues of federalism and separation of powers. Constitutional law casebooks and courses typically include an examination of judicial review, distribution of power among federal branches and between the federal and the state governments, and individual rights. The second of these themes, however, is often shortchanged in favor of the study of the first and third. Structural issues have played, and continue to play, an important role in constitutional law and in society generally. Moreover, concerns about distribution of governmental power may influence individual rights determinations.(3)
To facilitate this allocation of the subject areas, we divided our basic constitutional law offering into two required courses, each three credits. Constitutional Law I begins with an examination of judicial review but then focuses exclusively on federalism and separation of powers. The separate Constitutional Law II course, taught in the Fall semester of the second year, examines individual rights issues.
We also depart from the traditional approach to constitutional law by attempting to integrate constitutional theory and doctrine with practical problems. During the past decade, considerable attention has focused on methods of integrating theory and practice into the study of law.(4) While much of this literature focused on clinical legal education, some suggested the values of greater integration in traditional classrooms as well.(5) From the beginning of our collaboration, we agreed that students understand constitutional law theory better after they see its application, and that the practical implications are more fully appreciated when the development of constitutional law theory is learned. We prepared a set of problems for nearly every section of each chapter, and we use the problems to emphasize the practical component of constitutional law in most class sessions. The problems provide opportunities to escape the "pigeonholing"(6) effect of legal education, allowing students to see relationships among topics covered in their other courses. In some instances, the practical problems also allow the use of interdisciplinary material. Finally, the problems expose students to professional lawyering skills and issues of professionalism.
As our book and teaching evolved, we devoted considerably more time and book space (in relative terms) to separation of powers and federalism. We resisted reprinting most secondary source materials, and we presented only bare bones notes and questions following full case edits. We use our book, supplementary materials, and the classroom to integrate course topics whenever possible, to illustrate the role of social science disciplines in solving constitutional law problems, to show how state constitutional law relates to and complements federal law, and to bring some current constitutional law issues to the students' attention. The following discussion uses three examples to illustrate our use of practical problems to teach the structural issues.
TEACHING FEDERALISM THROUGH THE 11TH AMENDMENT
We begin the federalism section with a consideration of the reasons for a federalist structure and a historical overview. Specifically, our book includes historical material about the Constitutional Convention and the ratification debates. It then presents textual material that briefly traces the federalism theme in the pre-Civil War period, in the period from the Civil War to the New Deal, and in the modern period.
Like most casebooks, we examine federalism limits on the elected branches and the states. In this chapter, we first study the scope of federal power and then explore congressional power to regulate interstate commerce. The final section includes the dormant commerce clause cases as a vehicle for studying constitutional limits on the states' power to regulate commerce. …