Classes started this week here at South Texas, and for the second time in my Con Law course Marbury has lost top billing. I know, I know, its the case that introduced most of us to the Constitution in law school, and its the one most Con Law profs start with each semester. But I've dispensed with such sentimentalities and given Marbury the place I think it deserves - fourth. Students in my class read Hamdi, Plessy and Brown before they even get to the origins of judicial review. In Olympic terms, Marbury doesn't even medal.
No disrespect to the revered CJ Marshall, but I think its better to intro the course with a sort of "primer" on Con Law, starting with Hamdi, Plessy and Brown. The point is to provide a framework for analyzing later cases in terms of: (1) how inter-branch power struggles impact individual lives, and (2) the relationship between law and social change. Framing is important because I want students to consider these issues throughout the semester in every case they read.
Hamdi's great for the former since Hamdi's fate was tied to the outcome of a decision that had so little to do with him, or what he did or did not do. He was captured on a battle-field in Afghanistan but caught in a power struggle over which branch of government gets to draw the line between separation of powers and checks and balances - terms I'm quite confident Hamdi last thought of in a ninth grade civics class.
Just how much trust (or distrust) each Justice is willing to put in one
branch of government 
over another is fully on display in their individual opinions. And there's O'Connor's savvy due process compromise that gives to the executive branch with one hand and takes away with the other. There's an obvious parallel here to CJ Marshall and the origins of judicial review, which provided the class with an audible "ah, ha" moment last semester. We'll see if they catch it this time around when we get to Marbury next week.
As for Plessy, Brown and objective #2 . . . well, I'll save that for the next post.
In the meantime, let's hear from the innovators. Those who've ventured outside the norm, tell us what's worked and what hasn't, what strategies you've adopted, hope to adopt, or would never adopt, when approaching the most important, though woefully undervalued, part of our job: teaching.
-Kathleen A. Bergin
Does Hamdi result in students drawing lines and picking sides too quickly? And, why do you believe the relationship between law and social change should be a major component of a con law class? (not a hostile question - just a curious one). Hope all is well in the first week of classes.
Posted by: kiniyakki | August 23, 2008 at 11:35 PM
I think Hamdi actually had the opposite impact when I led with it last year. Students who participated in the discussion approached the case strongly aligned with one Justice or another based on their view of who was overreaching in the war on terrorism. By the end of the class, I was convinced that at least some of them had a new found understanding and respect for the competing view. Not that any of them changed their position, but they understood more clearly why the debate can be so tricky.
It was also not uncommon later in the semester when other cases were being discussed for students to refer back to Hamdi: "well its like Justice so and so said in Hamdi . . . . " For whatever reason the lesson stuck with them.
Another reason for putting Hamdi first is the excitement it generates (ok, maybe 'excitement' is too strong a word) about Marbury. Its difficult for students today to appreciate the lessons of history or draw parallels between past and present controversies. The new millennials are all about the here and now, and reading cases from the nineteenth century sends them straight into a coma. Marbury makes much more sense to them after seeing a similar struggle play out in a contemporary context.
As to lessons on the law and social change, I'll post on that soon.
Posted by: Kathleen Bergin | August 24, 2008 at 01:08 PM