The Intellectual Dishonesty of Constitutional Law and What to Do About It

What is Constitutional Law?

What do students learn from Constitutional Law?

What should students learn from it and how should it be taught?

It seems to me that you've opened a box halfway, in that the question "How should Constitutional Law be taught to first-year students?" is underinclusive. Perhaps "Constitutional Law" should not be taught to first-year students at all. Perhaps "Constitutional Law" is not a subject at all, if law is taught optimally? The relevant prior inquiries, it seems to me, are the ones fundamental to every act of concentrated teaching: what do we want to help people learn, and why? Perhaps a full year is desirable for some "Constitutional Law" offering or other. We used to think Contracts was worth a full year, as well as Civil Procedure, and then decided otherwise. I've already indicated in other conversations that I think the first-year curriculum is fundamentally obsolete as presently conceived; in my view, "Constitutional Law" has no place there at all.

We used to have required first-year legal history, too. Like almost all legal history teachers I know, that seems to me a bad idea. (Morty loved teaching the undergraduate course you took, precisely because it wasn't a law school course; he would have had no fun offering that to HLS 1Ls instead of Torts, I assure you.)

The basic difficulty to which you point, in trying to establish what's wrong with the way Con Law is taught, is unrealism. The point of the course is to deny the obvious: that constitutional law is politics dressed in neutralish guise. Much bullshit cleverness goes into doing this, which is what law professors love more than they love helping people to become lawyers. So Con Law is where the budding geniuses go to become teachers of their own brilliance. If we take our own realism seriously, however, Con Law should actually be called "Introduction to Politics and the Pretense of 'Neutral Principles'."

So it seems to me that the way to improve this essay is to ask more questions and give fewer answers. What is "Constitutional Law"? What do we want students to learn, and why? How does this fit into the context of beginning law school, overall? Then maybe we are ready to begin designing courses or curriculum,

How Should Constitutional Law Be Taught to 1Ls?

-- By KatherineMackey - 06 May 2012

What Should a Constitutional Law Class for 1Ls Look Like?

A few times throughout the semester, my Con Law professor asked for suggestions about how to reconcile the rulings in two separate cases that were decided close in time but had outcomes that seem completely contradictory. Often, a student would raise her hand and suggest that—perhaps—the rulings in the cases are not reconcilable on the basis of legal principles but are instead more readily explainable by either a change in the external socioeconomic situation or a change in the personnel on the court. Our professor responded by requesting that we ignore the effects that external pressures and the make-up of the court might have and try to discern a legal principle that can explain the cases (he said this with an eye-roll, making clear that he thinks this is an artificial way of proceeding). It is usually possible to do this, but the principle is highly formalistic and unsatisfying. I don’t think this is unique to my class, and it has made me wonder why Constitutional law is taught this way, and what a more realistic Constitutional law class would look like.

Why is Constitutional Law taught this way?

I can think of several reasons why Constitutional law is taught like this: it is traditional; it is easier; or professors think it is teaching a valuable skill. I do not think that any of these justifications are valid. Based on what I have seen and heard from my professors this year and what Eben has told us in class, it seems like the teaching of law has not changed very much in a very long time. I can see this most clearly in my property class this semester. I have an older professor who continually compares his class to one he took as a 1L at Harvard. We read many of the same cases he read as an undergraduate and based on what he says, it seems like he took his teaching method from his professors. He also, frequently, complains about our textbook as being an out-of-date way to teach property. He published his own textbook, but according to him it was too new-fangled to be successful. It’s natural that there would be a feeling of continuity from generation to generation of professors, but I think too often people use the fact that something has been around for a long time as an argument for continuing to keep it around.

The second justification—ease of teaching—is related to the first. It is natural that someone would find it easier to model their teaching and curriculum on the way they had been taught and it is also natural that once you’ve started to teach a certain way, it becomes easier to continue teaching that way rather than changing. Focusing strictly on legal materials instead of other sources also makes teaching easier.

Lastly, law professors at a law school will naturally (though not correctly, in my view) believe that learning to reason with and from legal principles is the most important skill you can learn in your first year, even if it is disconnected from a true understanding of the cases we are reading. The combination of these factors provides an explanation for why Constitutional law is taught the way it is.

How should it be taught?

None of these factors provide a satisfying justification for this way of teaching Constitutional law. Neither tradition nor ease provides an argument that can withstand any scrutiny, and, though learning to manipulate legal concepts is essential, it is one of many essential skills that lawyers need to learn. According to Eben, lawyers are people who do things with words (not necessarily with legal concepts, or legal words) and our first year Constitutional law class provides the appropriate venue for understanding how lawyers can use words to get things done.

Constitutional law should be taught in 2 semesters. The first semester would be a legal history class of the sort that I took as an undergraduate (memorably taught by Morton Horwitz at Harvard). This class would proceed chronologically through the history of the court and, in addition to reading the important opinions from each era, would focus on how the court’s decisions and actions were a product of the intersection of legal arguments and social forces external to the court. That way, Lochner could be read alongside its contemporary commerce clause cases and we could understand how these decisions were related to what was going on in society. This semester would serve 2 purposes: 1) informing students of the history of the Supreme Court and the Constitution; and 2) acquainting students with the essential cases and concepts in Constitutional thought.

The second semester would focus on how lawyers use legal concepts to make their arguments and how the judges use legal concepts to justify their decisions. Rather than trying to provide an overview of Constitutional law, the professor would focus on a few particular areas of interest or significance. Student assignments would involve reading appellate briefs, listening carefully to oral arguments, and critically reading majority, concurring, and dissenting opinions. The class would attempt to teach us how good lawyers try to persuade by examining their rhetorical techniques, their legal arguments, and their policy arguments. It would be assessed with a brief for the current Supreme Court on a contemporary issue (for example, try to persuade 5 Justices that a certain fictitious elementary school diversity plan is constitutional). This half of the course would give students knowledge about the dynamics of the contemporary court and understanding of the process that lawyers go through in attempting to pitch their arguments for the best chance at winning.

This course would do away with the fiction that Constitutional law occurs in a vacuum, teach students practical advocacy skills, and do nothing to undermine the 1L curriculum’s focus on the importance of legal reasoning.

(I want to continue to revise and receive feedback. Thanks!)

-- KatherineMackey - 06 May 2012

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