Law in Contemporary Society

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

-- By KatherineMackey - 31 July 2012

What is Constitutional Law?

My Constitutional Law professor frequently asked students to reconcile the rulings in two separate cases that were decided close in time but had outcomes that seem completely contradictory. Inevitably, a student would raise her hand and suggest that the rulings in the cases are not reconcilable on the basis of legal principles but are instead more readily explainable as political or moral decisions. Our professor would respond by requesting that we ignore the other factors that might explain the decisions and try to articulate 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).

The problem with this way of teaching Constitutional Law is that it is intellectually dishonest. It consists of two layers of legal ex post facto justifications for moral or political decisions. The first layer occurs when the court reaches a decision and has to justify its decision in legal terms. The second layer occurs when students discuss the decisions in class, and instead of discussing the decisions in realist terms, they try to identify legal principles that could explain a chain of seemingly irreconcilable cases.

What do students learn from Constitutional Law?

Studying Constitutional Law in this way attempts to teach students the same legal reasoning skills that are taught in the common law classes in the 1L curriculum. The study of Constitutional Law is an inappropriate way to teach these skills for at least two reasons. First, students usually know more about Supreme Court Justices than about the average judge whose opinion is featured in one of the common law textbooks. Knowing about the Justice’s biography and voting history makes it harder to pretend that judges are neutral legal reasoning machines. Secondly, many Constitutional Law cases concern issues about which Justices and students have strong opinions. It’s hard to believe that an ardently Catholic judge will be able to apply neutral legal principles when thinking about abortion; it’s easier to believe that a judge, no matter her background, will be able to do so when thinking about negligence per se.

This is not to say that political factors don’t influence the judges in common law cases—only that it is easier to ignore these factors and focus on the process of legal reasoning. This means that using Constitutional Law to teach legal reasoning is both redundant and transparently intellectually dishonest. It’s impossible for students to understand a case as a piece of pure legal reasoning when other factors so clearly have an influence. This kind of study teaches students to ignore what is real about Supreme Court cases and to focus instead on the legal formalism that obscures what is actually happening.

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

Though studying Supreme Court decisions is not an effective way to teach legal reasoning, it has value to future lawyers because of the legal power wielded by the Court. This means that the study of these decisions belongs in a law school, but to determine its proper place we must determine what students should learn from it. There are at least three useful things that students can learn from studying Supreme Court decisions: the subject matter of a specific area of law, American legal history, and how legal principles combine with other factors to make law.

Students who anticipate having careers that involve litigating issues that make it up to the Supreme Court should learn about how the Supreme Court approaches issues in their area of interest. Courses designed for these students would focus narrowly on specific areas of Constitutional Law and would not be offered with a realist perspective that involves understanding how the court has historically approached certain issues, how the court approaches those issues currently, and how this approach is likely to change in the future. Unlike the current Constitutional Law class, this class would include Circuit Court opinions so that students are fully informed about the subject.

Students might also want to study Supreme Court decisions to learn about an important part of American history. A class in Constitutional history would discard the pretense that Supreme Court decisions are rooted in neutral legal principles and instead examine the historical relationship between the decisions of the Court and the non-legal world. This kind of study would be relevant to students who are interested in the current state of the Supreme Court and students who hope to appear before the court, but would have a broader appeal than the narrowly focused subject matter seminars.

Finally, studying Supreme Court decisions might be valuable as a way of dismantling the illusion of neutral legal principles that is taught in 1L classes. This class could be taught in a way that emphasizes how to use legal arguments to justify moral or political conclusions. Instead of ignoring what seems obvious about Constitutional law, this class would start from the premise that judges are making political or moral (not legal) decisions and examine how the justices and advocates use Constitutional concepts to couch these arguments in legal terms. It could study the rhetoric and strategies used by advocates appearing before the court and attempt to understand how the Justices come to their conclusions and how they think about the policy consequences of their decisions.

There is room in a law school curriculum for each of these approaches to Constitutional Law. Instead of having one required Constitutional Law class for 1Ls, Columbia Law School could have a Constitutional Law requirement that could be satisfied by taking any of the classes described above. This would ensure that each student graduated with a realistic understanding of how Constitutional Law works and with some specific knowledge about the content of Supreme Court decisions. This is preferable to the current arrangement, where students learn little legal reasoning and less about how the Supreme Court actually operates.

-- KatherineMackey - 31 July 2012

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