Not Contrarian Enough: A Response to Michael Stokes Paulsen’s Critique of Contemporary Courses on Constitutional Law

I agree with approximately 90% of Michael Stokes Paulsen’s remarks on the “uselessness of constitutional law,” so anyone looking for a defense of the professoriate to teach constitutional law will be sorely disappointed.  That leaves the 10% difference between us, to which I shall turn presently.  First, though, I want to take a few lines to underscore the points where we agree.

I am not sure the right question is why we teach constitutional law at all in law schools.  After all, we teach lots of courses that are fairly esoteric and/or of interest primarily to the professors who teach them.  The real question, illustrated in Paulsen’s “dramatic contrarian proposition,” is why in the world it is a required course.  I have addressed this question myself,[2] noting that the “bar examination” rationale is preposterous insofar as contemporary law schools almost aggressively (and correctly) refuse to require most of what the state bar examines.  Think only of Evidence or Corporate Law in this regard.  Paulsen is also absolutely correct that few practicing lawyers need concern themselves with the complicated doctrines spun out by the Supreme Court, which remain the focus of most courses in constitutional law.  As it happens, I am significantly more sympathetic than Paulsen is to the “citizen-education” rationale, given the perhaps unfortunate empirical fact that lawyers continue to disproportionately represent among the ranks of ostensible “leaders” charged with offering cogent observations about the problems of our polity and possible remedies for what ails it.  As I am writing these lines (January 2012), it appears most likely that the major-party candidates in the 2012 presidential race will both be graduates of the Harvard Law School. We therefore have more than a parochial reason to be concerned about what students learn to talk about when they talk about “constitutional law.”

Should they spend their time obsessing on what the Supreme Court has said about the Constitution, either in the past or present?  And, if so, why?  I agree with Paulsen that if we are looking for sound guidance on the enterprise of “constitutional interpretation,” then reading Supreme Court case is often counterproductive.  Far better to read a number of very good books written by Hercules-like legal academics who, writing only for themselves and not needing to garner the votes of colleagues on a multi-member court, present their own answers to the question, “how should we make interpretive sense of the complex text that is the Constitution.” This assumes, of course, that it makes sense to limit “the Constitution” to a canonical text rather than to recognize that it inevitably consists of multiple “unwritten” aspects as well.[3]  Looking only at books written in the past three decades, one could do far worse than ponder seriously the various approaches of John Hart Ely (Democracy and Distrust); Randy Barnett (Restoring the Lost Constitution); or Jack Balkin (Living Originalism), not to mention the essential work of constitutional “meta-theory” by Philip Bobbitt (Constitutional Interpretation).  I also agree with Paulsen that Akhil Reed Amar’s America’s Constitution: A Biography is an unusually fine book that easily deserves a place in an “ideal” constitutional law course.

So what accounts for our over-emphasis on the casework of the Court, since, as Paulsen suggests, it cannot be that reading a tortured opinion written to cobble together a five-justice majority—see, for example, Justice Scalia’s intellectually indefensible handiwork in District of Columbia v. Heller[4]—offers better guidance than the aforementioned works by serious scholars?  The answer—should I say “of course”?—is that the Court, for better or worse, is a political actor that must take responsibility for its decisions and their consequences in a way that academics do not.  Whether or not the Court simply follows the election returns, it is surely attentive to the political milieu within which it operates, including potential threats to the Court itself if given decisions prove too unpopular among the general public or members of Congress, whatever the reception by “leading academics.”  If one of our tasks is to teach students how American political institutions operate, then spending some time on the Court is surely justified, even if it is important to emphasize that what is being studied is what might be termed “interpretive pragmatics” rather than the quest for a certain kind of “interpretive purity” characteristic of law professors.  This is, for example, what amply justifies the inclusion of Prigg v. Pennsylvania and Dred Scott in Paulsen’s list of canonical curriculum materials, even if I strongly suspect that he is rightly repulsed by aspects of both decisions.  It is also useful for students to realize that Supreme Court justices who often rail about “one true approach” to constitutional interpretation often prove to be quite “faint-hearted.”  This term, of course, comes from Antonin Scalia’s famous limitation of his own commitment to originalism.  This approach underscores the necessary linkage between “law” and “politics,” which, of course, is anathema to a widely-adopted rhetoric that insists on their absolute separation.

So where does Paulsen go wrong in his screed?  Given the space available, let me focus on two problems.  The first has to do with what we are training students to do as potential lawyers.  The second involves an aspect of the “citizenship training” that I continue to think is an important part of the justification for offering—perhaps even, at the end of the day, for requiring—a course on American constitutionalism.

Paulsen offers an entertaining critique of what he calls the “Cal Tillisch High School Chemistry Lab Experiment Theory of Constitutional Interpretation,” which can be summarized as first deciding on the result you wish to achieve, then plotting the data accordingly.  He suggests that “[t]hese are the very tendencies legal education and training need to be working hardest against.”  But why?  If law schools were in the business of exclusively training judges, then Paulsen’s critique would be easy to understand and possibly even easy to accept, though it would require accepting certain controversial theories of jurisprudence.  But we are not in the business of training judges, even if we have the good fortune to teach at the Harvard or Yale law schools, which now apparently have a monopsony on providing members of the Supreme Court.  We are training lawyers, and, whether we like it or not, it is the essential job of the lawyer to manufacture non-frivolous arguments, whether sincerely believed or not, that are designed to serve the interests of a client who may well conform with Oliver Wendell Holmes’s description of the “bad man” interested only maximizing his self-interest and not at all in the interests of the wider society.

Lawyers are always plotting data against pre-ordained results, perhaps especially if they actually share the views of their clients and believe they are good rather than “bad men.”  That is why they are hired, and it would be an exceptional lawyer indeed who proclaimed to a client, “As much as I admire the ends you seek, I refuse to make (originalist) (fundamental values) arguments because I think they are intellectually indefensible.”  Our job as law professors, at least is part, is to accept our role as members in the Gorgias school of rhetoric, teaching our students the kind of arguments that will prove attractive to certain audiences and procure our (or our clients’) goals. Even Paulsen acknowledges the presence of various “modalities” (to use Philip Bobbitt’s term) of constitutional argument—“text, structure, history (or intention or purpose), precedent, [and] policy,” which may well conflict with one another.  Interestingly enough, he leaves out both “fundamental values” or “natural law,” the former of which is often, and the latter sometimes, adverted to in Supreme Court opinions.  In any event, the competent lawyer must know how to use all of these modalities when appropriate, and “appropriateness” is often, perhaps always, defined in terms of the likelihood of their being accepted as such by the target audience.  One might bewail this aspect of lawyering.  There is a reason, after all, why both Socrates and Jesus were less than admiring of rhetoricians and lawyers, but neither can be said to be a founder of the legal profession as it is understood in the United States and to which most of our students aspire to enter.

But I have already noted my refusal to defend contemporary courses in constitutional law on the basis of their narrow professional training.  Instead, I emphasize the “civic education” aspect of teaching about the Constitution.  So the crucial question is what constitutes the best kind of civic education.  There are things I like about Paulsen’s list of materials toward the end of his essay, but, at the same time, I think he ends up being surprisingly conventional.  What is most striking is the emphasis he places on Supreme Court cases.  There is nothing “wrong” with his particular choice of cases, and much that is right.  In addition, he pays some, though not enough, attention to the “Constitution outside the Courts,” as in his inclusion of the debate over the Kentucky and Virginia Resolutions or Lincoln’s Inaugural address and then the Emancipation Proclamations.

What I think is missing, however, is any genuine attention to what, in a forthcoming book,[5] I call the “Constitution of Settlement,” i.e., the structural aspects of the Constitution that have remained basically fixed since their framing in 1787.  Moreover, and crucially, they raise no “interpretive” issues that trigger litigation or allow long classroom discussions about the “meaning” of some disputed provision.   There is a great deal to debate about the wisdom of, among others, the equal allocation of seats in the United States Senate; the fixed presidential term, impervious to the possibility of a vote of “no-confidence”; the electoral college; or the sheer difficulty of formal constitutional amendment; or even the specific date on which we inaugurate new presidents, to name only five dubious features of the Constitution.  But debates about wisdom are entirely different from those about “meaning,” which are settled by the sheer reading of the Constitution.  Paulsen recognizes the potential desirability of teaching students “about the structure of government,” but I am afraid that he defines “structures” the way that most law professors do, which involves litigation about, for example, the scope of presidential power.  Youngstown Steel raises many important questions (even as it answers few of them), but one that it does not is whether we would be better served by a system of government that would allow Congress to vote no-confidence in a President who, like Truman, had the support of only 22% of the American public in 1951 (and who had, in addition, engaged in astonishing displays of unilateralism with regard to initiating American participation in the Korean War).  Like almost all law professors, even those who view themselves as self-consciously “contrarian,” Paulsen is nonetheless obsessed with what I call, in contrast to the “Constitution of Settlement,” the “Constitution of Conversation,” where “conversation” is defined by reference to possibilities of litigation and the presence of genuine interpretive disputes as to meaning.  I obviously do not believe that the Constitution of Conversation should be ignored, but I do think that recognition is warranted of the perhaps greater importance of the Constitution of Settlement, especially if one wants to understand the actualities of American politics and the reasons why most Americans, whatever their politics, are increasingly alienated from the American government.

Finally, I believe that both for professional and civic education reasons, a model course on “constitutional law” or, as I would prefer, “American constitutionalism,” should include some attention to the other fifty constitutions in the United States.   Comparison of the United States Constitution with the constitutions of the various states will quickly reveal how much of an outlier the former is in many respects.  Consider only three issues:  The national Constitution, as is well known, completely rejects even a scintilla of “direct democracy” in favor of an exclusive reliance on “representative democracy.”  Forty-nine of the fifty state constitutions (Delaware is the exception) make different choices, some of them quite dramatic indeed with regard to the possibility, for example, of citizen referenda that can overturn legislation or even amend constitutions.  Secondly, forty-eight of the fifty states reject any notion of the “unitary executive.”  Governors do not get to appoint—or, therefore, to control, all executive branch officials.  Most dramatic is the relative independence of state attorneys general from governors.  Finally, and perhaps of most relevance to would-be practicing lawyers, state constitutions have their own sets of protected rights, including, most importantly, an “affirmative right,” in all fifty states, to some form of public education.  It is a true scandal of American legal education that courses on “American constitutionalism” tends so completely to ignore the important realities of state constitutions, the issues they raise, and the lessons they might well teach students (and, for that matter, their professors).

As always, Michael Stokes Paulsen challenges his academic colleagues to think more deeply about what they are doing when designing their courses or, as members of faculties, requiring that students take them.  I can only hope that he gets the readership (and influence) that his ideas deserve.

[1] Sanford Levinson, W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School; Professor of Government, University of Texas at Austin

[2] See Sanford Levinson, Our Schizoid Approach to the United States Constitution:  Competing Narratives of Constitutional Dynamism and Stasis, 84 INDIANA LAW REVIEW 1337 (2009).

[3] See Sanford Levinson, CONSTITUTIONAL FAITH (Princeton University Press, 2d ed. 2011).

[4] I should emphasize that this is not meant to criticize the outcome, with which I basically agree.  I am no fonder of Justice Stevens dissenting opinion in terms of its intellectual merits.  See Sanford Levinson, “Assessing Heller,”  7  I • CON 316 (2009).  I note, for the record, that Scalia’s opinion has been castigated by several leading conservative writers, including Judges Richard Posner and J. Harvie Wilkinson and, most relevantly from my perspective, Nelson Lund of the George Mason Law School.  I also note that Paulsen does not include Heller in his list of “great cases” that would be part of his ideal curriculum.

[5] Sanford Levinson, FRAMED:  AMERICA’S 51 CONSTITUTIONS AND THE CRISIS OF GOVERNANCE (Oxford University Press.)