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Why Constitutional "Law" Should Not Be Taught in Law Schools

By Jack M. Balkin

It sounds absurd to suggest that Constitutional Law should not be taught in law schools--guffaws echo throughout law school land at the suggestion. But hear me out.

First note that, unlike other law school subjects, many leading constitutional scholars are not law professors, but professors in politics departments (take Gillman, Graber and Whittington, for example, from Mark's post below). The constitutional analysis produced by law professors is virtually indistinguishable from that produced by politics professors: same terminology, same theories, same journals, same case discussions, same intellectual terrain. When sociologists study law from a sociological perspective (or when political scientists apply quantitative methods), in contrast, they are not doing the same kind of analysis as legal scholars--hence these two perspectives rarely engage. The overlapping discourse of politics professors and law professors says something important about constitutional law: it is not distinctively "legal" in the way most other legal subjects are.

The fact that constitutional law can be taught in colleges is not a reason to take it out of law schools, of course. Here is the reason: constitutional law is the most prestigious field in the legal academy; when thinking from this field leaks into other areas it produces a distorted understanding of law and of legal argumentation. Most legal subjects revolve centrally around legal rules and concepts. Constitutional law is much more open. The difference is a matter of degree, but the degree of difference is substantial. Applying constitutional ways of thinking (modes and standards of constitutional analysis) to other areas of legal analysis, for this reason, is a mistake.

Let me give an example. Mark says below that he finds nothing out of the ordinary about John Yoo's constitutional analysis, noting that "the arguments seemed no more or less scholarly than the constitutional theory in the average top-twenty-five law review." Perhaps. This does not, however, bear on the propriety or plausibility of the non-constitutional analysis of the Bybee Yoo Torture Memo. The analysis relating to the meaning of "torture" was statutory, not constitutional, and the applicable standards differ accordingly. Mark knows the difference, so I am not saying that he failed to recognize it--but I am saying that it is easy to forget. More important, students may fail to appreciate the difference if they are not reminded of it. Students who learn that constitutional law is infused with politics (though it cannot be reduced to that) might wrongly come to think that all law is like that, an easy error to fall into because constitutional law has so much prominence and attention within the legal academy.

Twenty years ago a few people suggested (rather hysterically) that adherents of Critical Legal Studies do not belong in the legal academy because their skepticism undermines law. Perhaps the bigger threat to belief in law comes from constitutional law professors whose skepticism about the legal component of constitutional analysis infects other areas of law and legal analysis.

P.S. I confess: it is a ridiculous suggestion, offered in jest (and with apologies to fellow Balkinizers, several of whom are important constitutional law scholars). But there is a serious point here.

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Full post as published by Balkinization on April 18, 2008 (boomark / email).