Daniel Kishi's attack on Robert Bork betrays a startling misunderstanding of the debt antitrust jurisprudence owes to the late judge.
Why do we teach “Constitutional Law” in law schools? What is the point, really? Is it because the subject is on the bar exam? If so, that simply begs the question of why it is an appropriate subject to be tested on the bar exam – why practicing lawyers need to know “Constitutional Law” – and invites the further question, a professors-versus-practitioners perennial, of what law school should be trying to accomplish: bar exam prep, law practice preparedness, or something else? Do we teach Constitutional Law in order to teach legal methodology and sound legal reasoning? (That question probably begs laughter.) Or is it to teach knowledge deemed essential for “citizenship” in some sense, and especially for lawyer-citizenship – kind of a “Civics for Lawyers” rationale? (A variant on this thought might conceive of Constitutional Law as a kind of political science class – the study of what particular governmental institutions do.)
What we think the point is of teaching Constitutional Law should, of course, greatly affect both how we teach Constitutional Law and what we teach as “Constitutional Law.” This is true not just for law school courses in the subject, but for undergraduate study of constitutional law as well. More than that: thinking about these questions can inform what “students” of all ages – including informed citizens of all ages– should be studying, and what questions they should be thinking about, when they set out to learn about the Constitution. What is the point? What is the proper object of study? Why is it important?
In this short essay, I muse on these questions and offer some serious and half-serious answers. (I will let readers judge for themselves which are which; I’m sometimes not sure, myself.) My musings are loosely organized around the three main questions of the first paragraph concerning the possible justifications for studying Constitutional Law: (1) Is it to pass the bar exam? (2) Is it to learn legal interpretation and methodology? (3) Is it to create better-informed citizens or describe the workings of political institutions? These three possibilities do not constitute airtight categories; they may overlap in certain respects and inform one another. And there may be a few miscellaneous possibilities. (I have heard faculty colleagues suggest that the course is a “service” course in the sense that knowledge of Constitutional Law is a necessary foundation for other courses, which “build” on what students have “learned” in Con Law.) After reflecting on why we teach and study Constitutional Law, I will end with a proposal for what a good Constitutional Law course should be about, and what it might look like.
But first, I start with a dramatic, contrarian proposition, to frame the discussion: Constitutional Law should not be a required course anywhere in the American law school curriculum.
This is a proposition against interest. I am a co-author of a fairly new casebook in this field and stand to reap greater royalties if the course is required of all law students, rather than a disposable elective. Nonetheless, after twenty-plus years of law teaching I have come to this view. The basic course in Constitutional Law cannot be justified as essential for taking the bar exam – which should never be a sufficient basis for requiring a course of study, anyway – and a good, thoughtful Constitutional Law course will frequently work in opposition to such a purpose. (A bad, thoughtless Constitutional Law course may perhaps fit the bill, but that’s not a very good argument for requiring such an offering in law school.) Nor can Constitutional Law be justified as a required course on the ground that it is a good vehicle for teaching interpretive methodology and legal method generally, because it generally isn’t – at least not as the core introduction to such topics. I have quipped to colleagues and students that Constitutional Law should not be taught to first-year law students because students should learn to walk before they learn to stumble. But I’m not sure that students ought be taught to stumble at all. Perhaps the course may serve some good citizenship objectives, but I think that that is a truly iffy proposition. And it risks teaching some truly bad citizenship lessons.
So why teach and study Constitutional Law at all?
The “Bar Exam” Justification
I liked Constitutional Law a lot in law school! I had a great Con Law teacher – Charles Black – and a great roommate who liked to argue Con Law with me – Akhil Amar, who has since made teaching, writing and arguing about Con Law his career. (I knew him when he was nobody and take partial credit, or blame, for making him what he is today). I took a seminar on Constitutional Interpretation with a bunch of really smart, really interested students, including Akhil and Steve Calabresi (who is now my casebook coauthor), taught by Judge Robert Bork, who flew up from Washington to teach the class. I wrote a paper trying to puzzle out all things constitutional for the Bork seminar, and wrote a law-review Note on a constitutional law topic. What a great set of constitutional law experiences!
But what terrible, truly dreadful preparation for taking the bar exam on the subject of Constitutional Law! The bar exam notoriously tests for an understanding (if that is the right word) of the content of the myriad three-part tests, two-pronged inquiries, multiple tiers of scrutiny, balancing paradigms, and fine, implausible distinctions of current Supreme Court doctrine. Usually it’s not even quite current Supreme Court doctrine, but the formulations of three to seven years earlier, depending on the quality of the question writers. The second-worst position to be in, as a test taker, is to be really into Constitutional Law as a subject of study. It’s really bad to know a lot, have a coherent theory of what makes for a principled interpretation of the Constitution, understand and possess a mental critique of the major, doctrine-establishing Court decisions, and be current on the latest decisions that demonstrate that the doctrine is not really what people think it is. The worst position to be in, of course, is to know nothing about Constitutional Law. But a lot of knowledge is a dangerous thing: it can produce answers almost as “wrong,” from the generalist test-writers’ and test-graders’ perspective, as complete ignorance.
A little knowledge is the least dangerous thing: the mid-level law school B+ student is probably in the best position to ace the bar exam, not the A+ theorist. To be sure, some of the same excellent students and graduates who reveled in Constitutional Law as a subject of study possess the internal mental equivalent of “constitutional law bar examsoft” – knowledge-blocking software that enables the skilled thinker to shut out or shut down advanced thinking so as to perform the task at hand of choosing the least-bad wrong answer that the bar exam writers might have had in mind.
But why would one want a serious Law School (or undergraduate) course in Constitutional Law – one that studies the actual Constitution, its history, and its original meaning; that examines, critiques and challenges the doctrinal barnacles of judicial decisions that have accumulated around the Constitution over time; that evaluates and formulates thoughtful theories about the relationship between original legal text and runaway judicial doctrine – if the object were to pass the bar exam with just a little bit of knowledge? And who would want to teach such a course? Not I! Where student expectations (or many students’ expectations) are “teach me what’s going to be on the bar exam,” teaching about America’s Constitution and practice under it becomes a joyless, soulless experience. If paid enough on the side, I suppose I could easily teach a bar-review-course run-through of standard doctrines and formulae in just a few hours. And some of that material doubtless comes through, as a byproduct of even a good Constitutional Law course (though the knowledge-blocking problem remains). But to design, and teach, a semester-long or year-long course in the marvelously rich fields of the Constitution with the object of preparing students to pass a dumb test? Ish!
Unfortunately, that is many students’ expectation. Part of me is frustrated with such students. How could they not be interested in what I am so interested in (and what I think is important)? What’s the matter with them!? But part of me understands where they’re coming from. I never took Tax. I learned just enough to pass the bar exam, by reading Chirelstein (which I found surprisingly interesting). I don’t use Tax much, and would have resented it if it were required. I recognize that some folks view Con Law the same way. I value it more than I do Tax, and I tend to think my ordering of priorities is right. But there’s no reason why I should expect everyone to agree with me on that score. I suspect that many students could do just as well preparing for the bar exam with a good “Nutshell” or set of review-course materials summarizing Constitutional Law (for bar exam purposes) as I did on Tax. They might even do better that way than if they took my Con Law course, what with all of its emphasis on the actual meaning of the Constitution’s provisions as a matter of text, structure, and history. And, I must say, it is a royal pain in the hindquarters to teach Constitutional Law to students whose attitude toward the subject is as indifferent as mine was to Tax, just because they’re required to take the course. Let them take the course if they want to and ignore the course if they want to. So far as a “bar exam” justification is proffered, there is no reason to offer a good, serious course in Constitutional Law, let alone to require it. It may even do more harm than good. Especially given the volatility of Supreme Court decisions, the here-today-gone-tomorrow nature of Constitutional Law makes it the least good course in the law school curriculum for mere bar exam preparation.
Before moving on, I suppose I should comment on why law school, generally, should not be about teaching students how to pass the bar exam. Law schools should teach students to think; to think critically; to reason (and argue) logically, to think critically and reason (and argue) logically about law; and to know the content of, and be able to apply as a practicing attorney, the law – and in that order. The bar exam mostly tests that last, and least, objective and does so most imperfectly. More to the point, it tests best what can be learned without what a good law school course provides. The true value-added that law schools give students is training in mental rigor and the ability to think, reason, and argue clearly and logically; to puzzle through; to problem solve; to be able to understand concepts and play with them from all angles; to work around difficulties. The mere present-snapshot-of-the-content-of-the-law is moderately useful, but of transient importance. The content of the law changes; it is here today and gone tomorrow. Nowhere is that more true than in the field of Constitutional Law. What it is important to learn in law school, really, is how to think about law, so as to be prepared for (or even to make) those changes that occur over time. That is what endures; and that is what a good legal education has to offer. It is reasonably useful training, if done correctly. It should even be transferable to other disciplines.
In terms of what law schools should be doing, a bar-review-ish Con Law course is the worst thing in the world. But what about those other things that law school is supposed to do? Surely Constitutional Law is good training – great training, even – for learning how to think, how to think critically, reason, argue, and puzzle-through the proper interpretation of authoritative legal texts. Surely Constitutional Law is a fantastic way to learn legal method. Isn’t it?
The “Learning Legal Method and Critical Thinking” Justification
Well, yes and no. Yes, a prime object of a first-rate course in Constitutional Law is to learn legal reasoning and interpretive methodology, with a special emphasis on the proper construction of authoritative written legal texts. And constitutional interpretation frames such issues in an especially interesting way and with respect to (what ought to be) especially interesting and important topics: How does one faithfully ascertain, in an objective fashion, the meaning of provisions – words and phrases, terms – used in a legal text intending to create a binding set of obligations? The enterprise is (or should be) remarkably parallel to questions of contract interpretation. Is the object to ascertain the subjective intention or expectations of the parties who entered into the agreement? Or is it to ascertain the objective meaning of the words, in context, in a document of this type, written at the time and place it was written, for the purposes for which it was written, taking into account accepted specialized or non-standard usage? What evidence should be deemed competent, concerning intention of the drafters of the document, to impeach (or clarify, or reinforce) what one would otherwise consider the objective meaning of the language? Is it relevant to proper interpretation of a legal document what a court thinks is a preferable outcome? Is it proper for a judge to substitute his or her preferred result for the result indicated by the objective meaning of the legal language employed (or the intention of its drafters)? What is the relevance of practice, or precedent, inconsistent with a legal text, in deciding the proper meaning of the text? Are there specialized or general background understandings of principles that properly affect the proper interpretation of different types of legal documents (like Constitutions)?
These are the key questions common to interpretation of nearly all authoritative written legal texts – constitutions, statutes, regulations, rules (like the Federal Rules of Civil Procedure), and contracts. I have often distilled the core of Constitutional Law (usually when guest teaching a single class) as presenting chiefly the questions of what are the legitimate “modes” of interpretation – text, structure, history (or intention or purpose), precedent, policy – and, among whichever of these are legitimate, what the proper relationship is between or among them. That is the core question of how to interpret the Constitution. A related question is who interprets the Constitution (which is itself a question of constitutional interpretation) – courts, legislatures, executives, states, juries, voters, citizens – and, again, the relationships between or among possible interpreters.
Constitutional Law is a goldmine of materials for developing and exploring these questions. It is a wonderful source for rich intellectual discussion and the development of analytical and logical rigor.
But at the same time, it is a terrible subject matter for study of such issues, for two large reasons. First of all, precisely because the stakes are so high – because the issues matter so greatly, and often greatly engage the political, moral and personal commitments of students – there is a huge, almost irresistible tendency for students to “think” with their politics, their bellies, or their prejudices. In a word, students viscerate. They don’t reason in a principled fashion. Instead of logical thought, the subject matter tends to encourage, even fuel, the worst instincts of many students (and professors – more on that problem presently): they reason backwards, from their desired outcome, to whatever interpretive approach yields the desired outcome in a given situation.
I sometimes refer to this as the “Cal Tillisch High School Chemistry Lab Experiment Theory of Constitutional Interpretation.” Cal, a colorful character, was my chemistry lab partner. He had his own distinctive “method” for doing lab experiments and reports: “First, draw the desired curve. Then, plot the data. If time permits, do the experiment.” Cal is a lawyer now, of course.
This is how students, and many professors, tend to “do” Constitutional Law. Draw the desired curve; then, plot the data. No rigorous science required.
These are the very tendencies legal education and training need to be working hardest against. To be sure, the difficulty of overcoming bad initial instincts is hardly a reason to quash the study of Constitutional Law (any more than sin is a reason to quash religion). On the contrary, it might make Con Law class an important opportunity to confront and extirpate such bad habits, un-rigor, and result-oriented-ness.
But that brings us to the second problem. The material itself, and especially modern Supreme Court opinions, is so loaded with the same bad habits and lack of discipline that, often, instead of providing a great source of material for correcting sloppy thought, Constitutional Law tends to reinforce and validate precisely all of the worst instincts toward pure “visceration” as an interpretive methodology, by systematically modeling the relentless evisceration of anything resembling rigorous legal thought. The modeling is done by law students’ role models – judges, professors (to a far lesser degree) – and creates the impression that this is the proper way things are done.
In short, Constitutional Law is really bad law and models bad habits. Again, this should not necessarily be disqualifying. Constitutional Law could still be a great vehicle for teaching good interpretive method, because it presents so many bad examples to demonstrate what not to do. The problem is that, combined with student inclinations to think with their politics or preferences, the fact that the Supreme Court tends to do the same thing – and has for two centuries – tends to validate in their minds the legitimacy and propriety of Cal Tillisch-ism, undermining any attempt to inculcate rigor and principle. Thus, while Constitutional Law is, in theory, a gold mine for thinking about legal methodology, the mine is so hazardous, and so filled with Fool’s Gold, as to make the game not worth the candle. Only for the most gifted beginning law students can Constitutional Law serve well the purpose of introducing critical reflective thought on sound legal interpretive method. Maybe it can be taught to first years at Yale without doing lasting damage.
But probably not if it is taught by Yale professors. And this brings us to the related problem that most Constitutional Law professors at most law schools are committed Cal Tillish-ians. They either have their own set of draft-the-desired-curve-then-plot-the-data preferred outcomes and approaches, or their minds are so contaminated by the persistent pollution of modern judicial doctrine that they teach interpretive foolishness as received wisdom to all-too-willing-to-drink-the-kool-aid students.
For many if not most students, then, the interpretive lessons that Constitutional Law ends up teaching are that any answer is as good as any other, that there are a variety of interpretive approaches from which to choose, and that you should argue for your preferred approach in order to reach your preferred result, because that’s what the courts do – and therefore that’s what lawyers should do, too. That’s what law is.
Sadly, there’s enough truth to that set of lessons as a descriptive matter that there’s almost a good argument that that is what a Constitutional Law course should teach: how to manipulate texts to reach one’s preferred outcome. I have one former colleague, now a law school dean (who shall remain nameless, Jim) who was unabashed in embracing precisely this rationale for teaching Constitutional Law.
Which brings me back to my quip about why Con Law should not be taught in the first year: students should learn to walk before they learn to stumble. If one is looking for a good opening course from which to teach legal interpretive methodology, do not start with Advanced Unprincipled Manipulation (aka Constitutional Law). Start with Contracts, a course about interpreting texts, the interplay between text, intention, purpose, and precedent, or Civil Procedure (a course I’ve taught more than a dozen times), which introduces students, almost unwittingly, to questions about interpreting authoritative written texts in a more law-like context. Contracts and Civil Procedure are much better courses for teaching legal method, legal reasoning, and textual interpretation than is Constitutional Law. Save the stumbling for later, please. And don’t require it.
A brief final comment on a loosely related justification sometimes offered for Constitutional Law: the argument that it is a “service” course that provides a “foundation” for others in the curriculum, like Family Law, Federal Courts, First Amendment, Administrative Law, or even Tax. I have my doubts. In my experience, Constitutional Law may provide a disservice to these courses. It teaches sloppy thinking and bad habits about interpreting legal texts, poor techniques that then get imported into these other areas, colonizing other domains with Con Law’s wretched refuse and spreading the sphere of its unfortunate influence.
I tear my hair out when, in teaching Federal Jurisdiction, students say they “feel” there “should be” standing to sue so that federal courts “can decide” needed issues – no matter what Article III might say or the structure and logic of the Constitution suggest. Teaching First Amendment as a course about legal rules fairly or not derived from the text becomes nearly impossible. So far as student’s “training” in Con Law is concerned, it’s all about how they feel the case should come out. Teaching the course becomes an arduous exercise in remediation. The class would work better if students had not had Con Law first.
As for courses that supposedly “build on” Con Law knowledge of doctrines like “substantive due process” or the various tiers of scrutiny associated with Equal Protection Clause doctrine, I suspect that it would be easier – more direct, less confusing – to simply give a one-minute statement of the relevant (odd) Supreme Court doctrine that has had the effect of constitutionalizing an area of Family Law, let the students scratch their heads for a minute, and then proceed: “Okay, assuming this [weird] set of doctrines, now then in this field . . .”. Administrative Law may need Con Law as a backdrop to some extent, because the stumbles are so similar. But Ad Law could stand (or stumble) on its own. The short point: No advanced law school course really needs the “service” that Constitutional Law provides.
Constitutional Law as Civics for Lawyers
All cynicism aside, I do think that law students – indeed, all citizens – would profit from an understanding of the U.S. Constitution and, more broadly, the operation of “constitutional law” within the American governmental process. Thus, one of the most plausible justifications for Constitutional Law’s inclusion in the law school curriculum is what I call the “Civics for Lawyers” rationale: lawyers, Toqueville’s supposed natural aristocracy, should understand their government. They should know about the structure of government, the separation of powers, federalism, the debate over judicial power, and the content and meaning of various individual liberties. Consequently, one of the advertised purposes of my Constitutional Law course is basic “constitutional literacy” – familiarity not only with constitutional interpretive methodology but also with the great cases in our nation’s history that have shaped contemporary understandings of the Constitution. Lawyers should know this stuff. (As should we all.)
But this objective has to be weighed against other things that are good for lawyers to know. I’m a huge partisan of the Constitution, of its history and meaning, and the great cases interpreting it, as a worthy subject of knowledge for its own sake. But is it really crucial – so critical as to be required – when compared to other worthy topics of study, like the Erie doctrine, the law of judgments, agency, or the Uniform Commercial Code? Is it really knowledge so vital to becoming a lawyer that it needs to be required? Few students will practice constitutional law, aside from the occasional boring “dormant commerce” or preemption issue, a procedural due process point now and then (rarely taught in Con Law anyway), and, for criminal law practitioners, the Fourth, Fifth, Sixth, and Eighth amendments (almost always taught in Criminal Procedure and never in Con Law). Practice demands don’t demand Con Law, compared to other more practical things. Is a pure “Civics for Lawyers” course – teaching the Constitution, and cases interpreting it, because of the value of such knowledge in its own right – sufficient to justify making the Con Law course mandatory? I am not at all sure.
A “Great Books, Great Cases” Constitutional Law & History Course
As I said at the outset, clear thinking about why we teach and study Constitutional Law might well affect what we teach and study. If, as I think, Constitutional Law is a course best designed to accomplish two core purposes – studying (and debating) legal interpretive methodology with respect to authoritative written texts; and achieving a certain level of citizen-lawyer (or citizen-anything) general constitutional literacy – then that should affect the design and content of the course.
Constitutional Law should not be a course exploring every little ripple of current Supreme Court doctrine on every little issue, or a barren exercise in memorizing what the Court has held on a variety of topics. It is not, and should not be taught as, a “bar course” or “service course.” Constitutional Law should be a general liberal education course – part history, part civics, part political science and government, and part law – addressing an enormously interesting and important subject matter and presenting recurring issues of legal interpretive method, which more advanced law students should be able to process, and critique, from the standpoint of (hopefully) already well-developed legal training. The course should focus on interpretive methodology, with cases and materials serving as examples to be understood and debated, and on historical-constitutional literacy – on what has proven to be of enduring significance in the life and history of the nation and in the history of the Constitution.
To accomplish these objects, Constitutional Law should be taught as a “Great Books / Great Cases” course – almost a humanities course. Throw out the law school casebooks entirely (with the possible exception of mine)! Study the Constitution itself, The Federalist (the best book written on the Constitution, ever), and one, or at most two, of the best modern studies of the Constitution. (My former law school roommate Akhil Amar’s America’s Constitution: A Biography is, I think, the best general book on the Constitution written since 1789.) Then, study and discuss only the 20-30 most important constitutional interpretive documents – a category that includes more (and less) than the Supreme Court’s cases – in the Constitution’s history, chosen for how well they serve to demonstrate interpretive choices, how important they were historically, and how influential they have been in shaping the nation’s constitutional past and present.
My own personal list (which I’ve noted in other writing) would include: The Alien and Sedition Acts controversy (including the Virginia and Kentucky resolutions and Madison’s “Report of 1800”); Marbury v. Madison; McCulloch v. Maryland; Luther v. Borden; Prigg v. Pennsylvania; Dred Scott v. Sandford; Lincoln’s First Inaugural, Message to Congress of July 4, 1861, and Emancipation Proclamations of 1862 and 1863; Ex parte Merryman; The Prize Cases; Ex parte Milligan; The Slaughterhouse Cases and Bradwell v. Illinois; The Civil Rights Cases; Plessy v. Ferguson; Giles v. Harris; Debs v. United States; Lochner v. New York; the New Deal “trilogy” of NLRB v. Jones & Laughlin, United States v. Darby, and Wickard v. Filburn; Korematsu v. United States; Ex parte Quirin; Youngstown Sheet & Tube v. Sawyer; Brown v. Board of Education; Baker v. Carr / Reynolds v. Sims and Bush v. Gore; Mapp v. Ohio; Miranda v. Arizona; United States v. O’Brien; New York Times Co. v. United States (the “Pentagon Papers” case); Nixon v. United States; Roe v. Wade and Planned Parenthood v. Casey; Lawrence v. Texas; Regents of University of California v. Bakke; Widmar v. Vincent, Texas v. Johnson, and Rosenberger v. University of Virginia; and the trio of United States v. Lopez, United States v. Morrison and the forthcoming decision in the “Obamacare” case.
One can quibble about the choices, but the point should be clear enough: a good course in Constitutional Law should cover only the Great Cases and should treat them as artifacts of history and objects of study and debate. The point should not be to learn, other than incidentally, representatively, and illustratively, Supreme Court doctrine.
The point of teaching and studying Constitutional Law – and there is one! – must be different. If the goal is to teach current doctrine by teaching hundreds of holdings, that is simply not a worthy goal and not something worth doing. If the goal is to teach legal method by teaching hundreds of cases, the goal may be worthy but the vehicle a poor one; the result is likely to be distinctly counterproductive. And if the goal is to teach the Constitution itself by teaching hundreds of case holdings, the disconnect is very nearly intolerable. If Constitutional Law is to be rescued from utter uselessness, the course needs to be demolished, redesigned, and rebuilt almost entirely, from the ground up. And the first step is to think about what we’re trying to build and why.
(Foundation Press, 2010).
 I once wrote a short blog essay about this method, inspired by a high school reunion. The post appeared on “Balkinization.” Michael Stokes Paulsen, The Cal Tillisch High School Chemistry Lab Assignment
Method of Constitutional Interpretation, (July 11, 2007).
 Akhil Amar, America’s Constitution: A Biography (2005). For my (mostly) favorable review, including some comments similar to those made in these next few paragraphs (and my personal Top Ten list of best books written on the Constitution) see Michael Stokes Paulsen, How to Interpret the Constitution (and How Not To), 115 Yale L.J. 2037 (2006). (For those with a taste for poison pens, see my companion review of Jed Rubenfeld’s book in the same essay and Jed’s response in the pages following. Jed Rubenfeld and I have been no-holds-barred sparring partners since a 2003 conference at Yale Law School on the thirtieth anniversary of Roe v. Wade, where we first went at each other’s positions mercilessly.)