Constitutional Law: First Year or Second?

Is it better for students to take the basic course in constitutional law in their first year or their second year of law school?

At some schools, like mine, Constitutional Law is a required first-year course. Other schools save Constitutional Law until the second year (and at some, including Harvard, it is optional).

I see benefits to each choice. My first year students tell me they find Constitutional Law the most difficult of their courses. (I’m confident it’s not–or not only–my teaching.)

By their second year, students are less anxious. They are more familiar with legal jargon and with reading cases. They are better at distilling points and taking notes. They write better. They know where to turn for help. So second-year students who read Marbury v. Madison for the first day of class (or, in my class, the second day—we start the first day with the text of the Constitution and then Roe v. Wade) are not likely to be scared off by talk about writs of mandamus, William Marbury’s commission, and the Judiciary Act.

On the other hand, first year students are enthusiastic, diligent and open-minded. They read the cases and talk passionately about them. They come to office hours and ask for review sessions. They post comments on the web discussion board. Many of them came to law school to talk about con law issues (at least the issues involving individual rights). Taking basic Constitutional Law early means students have the necessary background for more advanced courses in the field and they can appreciate constitutional law implications that arise in other subject areas. Many students in their second year want to get started right away on law review notes or papers on constitutional law issues.

I am interested in hearing comments from our readers. Do professors prefer to teach Constitutional Law to first year or second year students? When do students think they should take Constitutional Law? Comments open.

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12 Responses

  1. Roger says:

    Well, I took it spring of my 3L year, and I almost didn’t take it at all.

    I’m very curious why you start with Roe v. Wade….

  2. Dave! says:

    I vote second year. I had it my second year, and I although I do think you lose some of the enthusiasm, the comfort level with reading cases seems much more important to me. I don’t think we would have had nearly the level of participation and discussion in a 1L section.

  3. Another way to frame the question would be to ask whether there is something distinctive about Constitutional Law that would suggest that it in particular should be taught earlier or later.

  4. Eric Muller says:

    I teach Con Law at UNC, where it’s offered in the spring of the first year as a 5-hour course. I also taught it for 4 years at the University of Wyoming, where it was two separate courses — a 2-hour structure course in spring of first year and a 3-hour rights course in fall of second.

    My view is: the earlier, the better.

    The idea that Con Law is too sophisticated and nuanced for 1Ls is just ConLawProf snobbery.

    I think Constitutional Law demonstrates better than many other courses that the art and skill of lawyering lie in the big grey zones between the black letters. For that reason alone, it deserves to be in the first year.

  5. Eric Muller says:

    (Incidentally, the “too sophisticated and nuanced for 1Ls” idea is something I’ve often heard people say — not something that I read Jason Mazzone to be saying.)

  6. Jason Mazzone says:

    Thanks for the comment, Eric, and for the addendum. I certainly didn’t mean to suggest that con law is “too sophisticated and nuanced for 1Ls.” I recently saw Brooklyn -high school- students argue moot court cases involving con law issues and I was impressed by their performance.


  7. Belle Lettre says:

    I’m split–mainly because my law school was kind of split too. It required “Con Law I” first year, and made “Con Law II” optional second and third year. Con Law II was a class entirely about the First Amendment. Con Law I was _everything_ else–from structural constitutional issues to commerce clause doctrine (traditional and “dormant”) to equal protection to individual rights. I think that was a bit too much to fit in one 5 unit semester for 1Ls.

    At my new school, where I am an LLM student, I see that Con Law is required, but not during the first year. Instead, JD students have a choice between three modules: “Basic Issues,” “Structural Issues,” and “First Amendment.” I think that the dividing up of the corpus of Con Law into three more managable (and teachable and learnable) modules is wise, but I would require students to take at least two. I took both Con Law I and II, and I really think I’m a better person for it.

  8. The other consideration is the overall 1L curriculum. My sense is that more schools are trying to cram more courses into first year — some sort of admin or statutory interpretation, international law, electives. Something has to give. I think that is often what drives a move of Con Law to second year. (Other responses I have seen: moving Property later or making it optional, reducing the number of credits allocated to some other traditional courses like Civil Procedure.) For whatever reasons it’s seen as more plausible to move Con Law than, say, Torts.

  9. MJ says:

    I’m of the mind that it was beneficial to have had con law in my second year for two reasons: 1) by then I had a greater comfort with reading case book edited opinions and was therefore better able to read and understand the subject matter than I would have been as a 1L 2) Almost everybody has some con law in their undergraduate days, but you weren’t talking or thinking about it as a lawyer. I think that having con law as a 1L presents the potential problem that 1L’s would still be thinking about those cases in “civilian” terms rather than as lawyers, and that could get in the way of grasping the material.

    For example, I remember when I returned to my torts materials in preparation for the bar, there were things I re-read where I went “Oh, that’s what that meant!” because I was much more competent at legal analysis as a law graduate than I was as a 1L. The same thing applies to the growth that students make between 1L and 2L.

    I think con law as a 2L provides for better comprehension by the students.

  10. wheeler says:

    Second year.

    I thought the most valuable part of the typical first year subject was that it taught you to reason free from any desired conclusions. There is little about the mailbox rule, for instance, to arouse the passions of students. When they consider the rule, the outcome won’t be altered by whatever ‘ism’ with which they otherwise identify.

    Not so Con Law. Every half-conscious student comes to law school with some ideas about what the constitution does or does not say. Those pre-existing ideas can get in the way of good legal reasoning.

    That will still happen in the second year. But putting it off gives the dry-as-dust first year subjects a chance to teach clear thinking skills without interference.

  11. Kerry Fox says:

    I have been taking classes in constitutional law since undergrad. I dont think it makes any difference what year you start, at first the material may seem difficult. But starting early enables students to develop a basic understanding of the principles and grow from there. Also, i think saying con law is one of the most difficult classes is completely subjective. In my school, most first year students tend to have the most difficultly with property (especially future interests and the rule against perpetuities).

  12. Simon says:

    Why do you start with Roe, and what do you tell them about it?