Studying Constitutional Law in the United States

Halfway through the Harvard LL.M., one student reflects on the peculiarities and benefits

If you are interested in Constitutional Law, it is probably not a bad idea to deepen your understanding of the subject in the United States. After all, it’s a country with a long tradition of constitutional thinking, where constitutionalism is not just a legal concept, but more like an integral part of a civil religion. 

What is so unique about the US approach to Constitutional Law? What are the peculiarities of studying it here? Drawing on my experience from my current LL.M. studies at Harvard Law School, it is to those questions that I will now turn. 

What is peculiar about studying Constitutional Law in the United States?

The basic structure of teaching here is probably not much different than most other countries. Constitutional Law is taught in two classes: one focusing on constitutional structures (federalism, separation of powers, etc.), and the other on individual rights cases. But there are definitely some peculiar aspects, three of which I find particularly striking.

The first is the large role of history and politics. Maybe you don’t have to go as far as one of my fellow LL.M. students, who says that US Constitutional Law “is mere politics.” But it is certainly true that a huge amount of readings and discussions are concerned with the historical background and political implications of Constitutional Law cases. 

That is true for the US legal system as a whole, but it is most pervasive in Constitutional Law. The doctrine will always be evaluated from a sociological or political perspective, and history is omnipresent. Think about “originalism” – the view that constitutional interpretation is the task to discover the Founding Fathers’ intentions – being one of the influential tenets within contemporary constitutional debate in the US.

What is more, a lot of ongoing legal developments, such as in health care, affirmative action, or gun rights, are based on historical contexts like slavery, the Civil War, and the New Deal. You will need to understand these backgrounds to make sense of contemporary cases and debates. If you come from a jurisdiction that is more concerned with the internal logic of legal doctrine, the US approach will likely enhance your view, but also leave you slightly unsatisfied from an intellectual perspective.

The second characteristic aspect of Constitutional Law in the United States is that the system and debate is mostly centered on the preservation of individual freedom. This affects terminology, but also systemic features. The principles of federalism or the separation of powers, for example, are usually understood and examined from this point of view. This shapes many legal debates from the very start, and it might prove helpful to be aware of it.

Thirdly, another omnipresent issue in US scholarly debate is judicial review, or, more generally, the role of courts. Although this topic might arise in other jurisdictions, as well, it seems central to US legal discourse. This might not only be a side effect of the case method (court decisions necessarily deal with judicial review), but also due to fact that the US Constitution is hard to change. That means that a lot of the pressure stemming from social and economic change will eventually end up at the Supreme Court. They simply have to be active and creative time and again, thereby provoking foundational criticism.

Of course, there are a lot more differences in the United States, but the ones I mentioned might already provide an idea of the peculiarities of US Constitutional Law. You can take these into account when deciding whether you want to study the subject in the United States or elsewhere.

What is it like to experience it at Harvard?

Harvard Law School is one of the main centers of constitutional thought, discussion, and innovation in the United States. Of course, there are other excellent US universities for studying Constitutional Law (most notably, Yale), but there are some facts that make Harvard worth considering if you are interested in the subject.

First, Harvard has arguably the broadest variety of top professors in Constitutional Law and Theory. Not only do you have the real geeks and likely future Supreme Court Justices, like Noah Feldman, but also prominent controversial, innovative, and critical thinkers like Cass Sunstein, Martha Minow, and Mark Tushnet. And, of course, there is Laurence Tribe, a well-known Supreme Court litigator and commentator who has a lot of inside knowledge. Of course, Yale is also home to highly regarded scholars in this field, like Bruce Ackerman and Jed Rubenfeld (both Harvard grads, I might add).

Harvard Law also has one of the United States’ largest and most diverse offering of courses, many dealing with Constitutional Law or related issues. Some of them even focus on a single Supreme Court Case! 

There are also Comparative Constitutional Law classes, some of those dealing with particular problems within international Constitutional Law and Theory (like the principle of proportionality). This makes Constitutional Law studies at Harvard especially interesting for potential LL.M. students, not only because of the knowledgeable professors (like Vicki Jackson), but also it really invites international students to enrich the discussion with their diverse views and knowledge. 

Harvard also offers some special Constitutional Law clinics, and is one of the few law schools where Constitutional Law is not part of the first-year JD curriculum. This is relevant for LL.M. students because it means they will sit in class with advanced JD students. The level of discussion is therefore likely to be higher than in other classes.

Regardless of all this, the most characteristic aspect of Harvard’s current status within Constitutional Law is its extremely close relationship with the Supreme Court. Many of the most significant characters in the Court’s history – like Oliver Wendell Holmes, Louis Brandeis, and Felix Frankfurter – are graduates of the school. Five of the nine current Supreme Court Justices hold a law degree from Harvard (three are from Yale). That means that the only thing that the Supreme Court has more of than HLS grads is Roman Catholics (six of nine Justices).

These ties are kept alive, with Justices visiting the school for talks (most recently, Elena Kagan) or presiding in the jury of HLS moot competitions (Antonin Scalia).

Does it have to be Harvard?

In the end, Constitutional Law is a subject that breaks down into many sub-issues that future LL.M. students might be interested in for various reasons and with various career goals in mind. For those interested in teaching, for example, the Yale LL.M. might be the top option given the school’s track record in sending grads into academia. Those who already have a specific focus area in mind might want to pick a more specialized LL.M. program. 

In any case, given the above-mentioned peculiarities of the American Constitutional Law debate, pursuing an LL.M. in the United States is a good way to enhance your understanding of what constitutional systems can look like and where certain constitutional debates are coming from.

Image: Richard Howe / Flickr (cropped)Creative Commons

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