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Thursday, November 25, 2010

Son of Con Law

In my previous post I asked why law schools were backing away from requiring constitutional law courses.  It's clear from some of the responses that I was not completely clear about what I was getting at, so this is by way of an effort to be slightly clearer. And, since in reflecting on what I wrote I realized that I had focused on a part of the issue, rather than the whole problem, it is also an effort to elaborate. 

Let me start by saying that I do realize that law schools still teach constitutional law, either in independent con law courses, or as part of courses on other subjects. My puzzlement about the former was that those courses increasingly were not required; I tried to capture my concerns about the latter in my obviously unsuccessful metaphor about the phrase book.

So let me try to rearticulate my worries about fitting con law into other required courses, because I think that's a good way to get in to what I think is the larger problem that I completely failed to engage in my earlier post.

I worry that by moving constitutional law issues into other substantive courses and abandoning a required con law course in the process you teach students to approach constitutional issues only from the perspective of other areas of law. Take the example of Takings. If you teach it in a property course you do make it relevant in a way it probably isn't in a general con law course. But the cost is that you teach Takings only from the perspective of property.

There are any number of ways you can do that, of course: you can teach that the Takings clause is the perfect expression of the Anglo-American property law; you can teach that it is a constitutional distortion or check on the wisdom of the common law as modified by statutory reform; you can teach it is a reflection of the fundamental connection between property ownership and constitutional status.

Regardless, in any of those approaches what you are doing is teaching students to think of the constitutional principle only as a part of property law.  You are giving students a check list that includes a few constitutional terms to check off, but you are not encouraging them to think, either as students or lawyers, of our property regime within the context of a larger constitutional order.

And that's part of what I was trying to get at in my previous post.

But I see now that I failed to fully think through my puzzlement with the law school approach to con law. Because even a required, stand alone constitutional law course teaches a piece of constitutional law in isolation. And as I reflect on the matter, that strikes me as being as big a problem, or, more accurately, it strikes me as being an expression of the same problem. In both cases, we're carving up constitution into bits and and suggesting that its reasonable to think of the bits independently.

At this point, I should probably reveal, in a suitably hushed tone, that I am a big fan of Justice Douglas' opinion in Griswold. Outcome aside, though I'm all for that too, I really like his holistic approach to interpreting the constitution.

Having lost at least half the audience with that shockingly unserious revelation, let's unpack that thought a bit. Even if you reject the idea that there is a right to privacy (or if you object to the idea that the right to privacy includes a right to contraception), it seems to me that many of us can agree that there is much to be said for reading the constitution as a whole. It defines a constitutional order, and focusing on parts of that order in isolation, whether we do it in a class or in a case distorts that order. Theoretically, intellectually, textually, or historically, it strikes me there is a lot to be said for a holistic approach to reading and interpretating the text.

And even if it is not an appropriate approach to making constitutional claims (I can accept the argument that we have not done it that way for so long that it would be a pretty revolutionary act to start doing it now), it seems to me there is much to be said for trying to teach the constitution as a whole, rather than as a collection of parts. Of course, I recognize that teaching the constitution as a whole would be impossible in a single semester's course, required or not. It would be hard to do in a full year course. Maybe you could do it in three years, I'm not sure. 

Now I teach constitutional history, so from my perspective that's a feature, not a bug. But reasonable minds might differ. So how do you teach students to think about constitutional issues in a holistic fashion, if all you have is a semester to do it?

I need to go get ready to head out for Thanksgiving. So I'll deal with that tomorrow.

Posted by Elizabeth Dale on November 25, 2010 at 11:51 AM | Permalink


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I (usually and thankfully) do not teach my school's survey course in constitutional law, so perhaps I am poorly positioned to address this post, but it seems to me that some insight is derived from the fact that the traditional survey course is packed with an enormous amount of material of no real use in the practice of law. Rarely if ever does one need to know about the holdings in Marbury v. Madison or Morrison v. Olson (to name two staples of the survey course) in order to practice law. My 21 years of practice focused on constitutional law, and never once did I need to know anything about either of those cases, or indeed the vast majority of the other cases that are taught in the survey course. So, if one believes that a sort of Darwinian process of natural selection operates in law school curricula, albeit blunted by the effects of tenure and the isolation of most academics from practice, but perhaps accelerated by the increased pressure on law schools to make their graduates more competitive in the marketplace produced by the recession, then the survey course will not fare so well. Conversely, courses that focus on areas in which constitutional law involves issues that arise with some frequency in practice -- such as criminal procedure -- should fare better, at least if you believe that sooner or later market pressure will (and perhaps should) influence curriculum in any type of preprofessional education. And, perhaps, a new type of survey course will arise in which constitutional law is treated holistically while focusing on the types of constitutional issues that actually arise in practice, as opposed to those issues that scholars find of greatest theoretical interest. I myself teach a seminar along those lines, modeled on a similar course I took years ago from Archie Cox, who characteristically recognized the problems with the traditional survey course long before the rest of us did.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Nov 25, 2010 5:25:39 PM

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