Teaching Past a Constitutional Crisis | inquisitive Issue #6 "Limits"

A less limited approach to teaching indeterminate law

"Scene at the Signing of the Constitution of the United States" by Howard Chandler Christy, 1942. Wikimedia Commons, Public Domain.

Students come to law school eager to learn what the law is. They quickly discover that in our federated common law system, there often are no easy answers. Instead, they must read prior judicial decisions and attempt to glean from those cases legal rules that can be applied by analogy to new disputes. Still, as their first semester goes on, they come to realize that law has a rhythm, and even if there are fewer hard-and-fast rules than they anticipated, there are at least general principles, developed over centuries, that they can apply to the facts of a given case. And then they get to constitutional law.

As one might imagine, courses on constitutional law introduce students to the various modes of interpreting the Constitution. Issues such as the relative powers of the three branches of the federal government, the powers of federal vs. state governments, and the rights of individuals to due process and equal protection are all subjected to diverse, nuanced and often conflicting analyses. Indeed, more than the law of torts or property or contracts, constitutional doctrine is a morass of different rules, standards, and modes of interpretation that has shifted dramatically over time and frequently lacks an internal logic.

The Constitution is arcane, and while it is not infinitely malleable, there are often a range of reasonable interpretations of almost any constitutional provision. Supreme Court cases interpreting the Constitution regularly conflict with one another, and the court has often been only too willing to discard past precedent where it would lead to a result undesirable to a majority of the justices.

All of this is compounded by the fact that the work of the federal courts comprises only a fraction of constitutional law: Congress, the executive branch, state and local governments, and the people are all constitutional actors, too. The result is a course that is singularly frustrating to students who have painstakingly learned to apply common law reasoning, because values and historical circumstances do much more to dictate the outcome of constitutional disputes than any discernable legal principle.

This uncertainty makes constitutional law challenging to teach even at a good time; and as many constitutional law professors will tell you, now is not a good time. Under the stewardship of Chief Justice John Roberts, the Supreme Court has evinced a willingness to overturn or disregard longstanding precedents on issues such as abortion rights, affirmative action, and gun rights, to name just a few. One professor told The New York Times that she started crying while preparing her syllabus because she “couldn’t figure out how any of [the court’s recent doctrine] makes sense.”

Claims that the Supreme Court has created a “crisis” in teaching constitutional law have inspired a wave of scholarship from constitutional law professors. As many of these scholars have noted, the crisis in constitutional law is hardly a new phenomenon: The criticisms liberal law professors make of the court today—that it is lawless, policy-driven, and out of step with public opinion—could have been (and were) made by abolitionists in the mid-19th century, progressives in the Lochner era during the early 20th century, and conservatives during the Warren Court in 1950s and ‘60s. For this reason, Marquette University political science professor Patrick Sobkowski refers to the challenge of conveying clear doctrinal rules as “the enduring crisis in teaching constitutional law.”

Constitutional law teachers have proposed a range of solutions to this problem, from “teach[ing] constitutional law as a historical narrative” that has developed over time, to training students to make legal arguments applying various modes of constitutional interpretation “so well that they are indistinguishable from the arguments that would be made by those who actually subscribe to that methodology,” and even encouraging students to assess “the ultimate questions of power” and “what futures” a decision creates. While the specific approaches vary, all agree that the proper role of a constitutional law professor is not to impose a particular set of values on students, but rather to equip them with the tools necessary to make solid constitutional arguments.

All of this is fine as far as it goes. Effectively teaching students this subject requires introducing them to the reality that legal doctrine can only explain so much constitutional reasoning. I worry, however, that we do our students a disservice if we introduce them to the limits of constitutional “law” as such without helping them develop the tools to reframe those limits in a more optimistic light. That is why in my classes, I encourage my students to view the doctrinal uncertainty that creates viable arguments on all sides of an issue not as a hindrance to effective lawyering, but as an opportunity.

As I explain to them, doctrinal uncertainty is good for legal employment. Partially, of course, this is a flip remark about job security, but it also hints at something more fundamental. As the University of Chicago Law School’s William Baude suggests, “What really drives constitutional argument at the highest level of our system is not three-part tests, but more fundamental principles.” If Baude is correct—if constitutional law is ultimately a reflection of values—then students should embrace doctrinal uncertainty as an opportunity to make the law reflect their values.

There are at least four distinct advantages to this approach. First, it is fundamentally hopeful, in the sense that it encourages students to view themselves as constitutional actors who have a meaningful opportunity to effect change, rather than as passive participants subject to the whims of a capricious and dogmatic Supreme Court. Moreover, a hopeful message about values encourages students to consider themselves as part of the broader constitutional project, allowing them to develop more common ground with each other, their professors, and the broader legal community.

Second, emphasizing the opportunity that values-driven constitutional decision-making creates could help increase the legitimacy of the Supreme Court. As the late Harvard University Law School professor Richard Fallon explained, two different but important aspects of the court’s legitimacy are moral legitimacy (should people treat the court’s decisions with respect and obedience?) and sociological legitimacy (do people treat the court’s decisions with respect and obedience?). If students are trained to view the court’s values-driven decision-making as part of the iterative process through which we seek to structure a better and more just society, that could help bolster the court’s moral legitimacy.

This is particularly true where professors emphasize that on many contested constitutional issues there are often a range of values that could be legitimately pursued. Moreover, to the extent constitutional law professors have the power to shape their students’ attitudes about the court, as some argue, framing values-driven decision-making in a positive light could help lend the court more sociological legitimacy.

Third, this approach encourages students to develop the practical skills they will need to be effective constitutional lawyers. Just because constitutional law is often values-driven does not mean there is no doctrine. Training students on how values intersect with constitutional principles arms them to effectively advocate for clients—including in circumstances in which effective advocacy requires arguing for changes in constitutional law.

Finally, and perhaps most importantly, encouraging students to consider how their own values can be reflected in constitutional decision-making helps ensure that constitutional law professors will not—wittingly or otherwise—impose their own views about what the law ought to be on their students. Because there is only so much time in the semester, professors must necessarily curate their course materials and topics. And in doing so, it is impossible for them to avoid making value-laden judgments about what to include—and more importantly, what to leave out. Centering students’ values—and the meaningful possibility that those values could come to dominate constitutional thinking—helps to de-emphasize the professor’s biases, encouraging more robust classroom discussions and increasing the perception of fairness.

The “crisis” in teaching constitutional law is unlikely to abate while our republic endures. Indeed, the reality is that “constitutional law” is a verb, not a noun; and constitutional law professors will become happier, more effective, and more inspiring teachers if they learn to embrace that fact—and all the opportunity it contains.

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