Monday, August 13, 2007

An un-Conventional defense of the conventional constitutional law course

Fight!A comment on my constitutional law post, Chen contra Paulsen, takes issue with my conclusion that constitutional law courses should stick with the traditional doctrinal sequence over Mike Paulsen's "modest proposal" to convert constitutional law into a "Great Cases/Great Books" course:
[Graduates of nonelite law schools] are . . . important cultural cogs in making the Constitution a living institution. Con law classic does a poor job of teaching students the role that the Constitution plays in political life.
No, with all due respect, the fault does not lie in the course. It lies in the impoverished imagination and perverse priorities of some (though not all) teachers of constitutional law.

Roscoe FilburnThe traditional constitutional law sequence, especially if the instructor finds time to include a smattering of first amendment controversies, is rich with opportunities to "teach[] students the role that the Constitution plays in political life." A popular supplement, Constitutional Law Stories, makes life easy: the story-behind-the-story for some leading cases is available off the shelf. (Disclosure: I contributed a chapter to that volume.) If you have trouble turning the story of Roscoe Filburn's wheat harvest into a political epic, it's not because the case is dull.

Or perhaps you believe, not merely defensibly but quite correctly, that there are key episodes in constitutional history that never quite made it to the courts. Fair enough. Teach them. The cases give you all the leverage you need. Want to talk about slavery, nullification, and secession? They're all wrapped up in the Missouri Compromise, which unraveled in a rather notorious case styled Scott v. Sandford. The ultimate fate of the Second Bank of the United States? Easy discussion after McCulloch v. Maryland. The amendment process? Just ask what business the Court had deciding Craig v. Boren as it did while the Equal Rights Amendment hung in the balance. Political questions? Presidential elections? So the Supreme Court went, in a matter of speaking, to the Tilden-Hayes election. In our time, Bush v. Gore came to the Court.

A shocking number of constitutional law teachers, including widely published constitutional scholars, disdain the traditional sequence because they have neither patience for nor mastery of the case law. Ahem. That's what lawyers do. Okay, lawyers do other things. But those who routinely put their Supreme Court bar admissions to work (as opposed to treating them as office decorations) assuredly know their cases. At least after a little work, so do business lawyers looking for a way to navigate around an anti-corporate farming statute, partisan manipulation of public contracting, or suspiciously protectionist mineral severance taxes. The lawyers who do their jobs well are the ones who get to attend the cocktail parties where the most influential political punditry takes place.

Here's my challenge to the legal profession's tenured class: If you find Supreme Court cases intellectually "uninteresting" or otherwise inadequate to the task of training future lawyers how to think critically about the American political system, find another course to teach. There is no shortage of law professors who would deliver exciting, enduring content that will shape future lawyers even as it trains them. Your associate dean would appreciate some effort on your part to couple your advanced constitutional law seminar with a higher-enrollment course, but a discussion of decent attitudes about course assignments is fodder for future MoneyLaw posts.

Ellis IslandFinally, I can't help but think that there is a subtle but not altogether benign political motivation that inspires some members of the academy to trash the conventional constitutional law sequence in favor of a "Great Books" approach to teaching this subject. Rarely if ever have I met an advocate of a "Great Books" constitutional law course who thinks that the world has improved since 1787. Woe be unto those of us who draw inspiration from two other founding periods: Reconstruction and the New Deal. And this is to say nothing of those who fundamentally reject the Framers' expectations as a primary (let alone exclusive) source of constitutional wisdom. "They are dead," after all, "and we are not." For many Americans whose roots in this country reach no deeper than the last twelve decades' waves of immigration, nostalgia for the 18th century Constitution represents nothing more than an appeal to an ancient country that knew neither equality before the law nor citizenship by choice.

The United States of 1787, I am proud to say, is one I do not recognize as my own. And the story of today's Constitution, interpreted by judges, politicians, and citizens and sketched both within and beyond United States Reports, is well worth teaching.


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