Legal Commentary

As I think I mentioned earlier, I mostly do constitutional history. Specificially, I teach several types of constitutional history. I teach US Constitutional History in a general course for law students and graduate students in history, political science, and related fields; I also teach some more specialized law student/grad student constitutional history courses: I've taught a seminar on civil rights in times of war and trouble and a course that looked at constitutional history through the lens of citizenship. In addition, I frequently teach a law student/grad student seminar on comparative constitutional history, which compares constitutions across time and space.

And in my history professor guise I teach a lot of different undergraduate courses in constitutional history, from a course in the long history of civil rights, to research seminars on particular famous constitutional cases, to the usual overviews.

Almost all of my research and writing has been in constitutional history, broadly defined. I've looked at efforts to create a religiously based constitutional order in Massachusetts Bay colony in the 17th century. I've written about the intersection of criminal law and constitutional forces (specifially popular constitutional forces) in 19th century criminal law, and I'm starting work on a project that looks at transnational constitution-making efforts in China at the turn of the Twentieth Century.

And before I got into all this academic stuff, I was a civil rights attorney at a firm that specialized in the 4th Amendment claims, and also did employee work that sometimes raised constitutional issues.

So I've basically been dealing with constitutional law, from a variety of perspectives and in quite a few settings, for my entire working life. And I admit to being a bit puzzled by the role of constitutional law in law schools.

I should probably make a pre-emptive confession here: I cut most of my constitutional law classes when I was a law student.  So I understand that it's not always a particularly gripping course, even for people (especially for people?) for whom constitutional law is fascinating.

But even given that, I'm a bit puzzled by the fact that it seems to play a smaller and smaller role in the law school curriculum. As best I can tell, and I have not exhaustively reviewed the first and second year curriculum for most law schools, a number of law schools no longer require Constitutional Law I. It also appears that those schools that do require a semester of constitutional law rarely require, or even recommend, further courses in constitutional law. And those schools that do not require any constitutional law often do not recommend, or strongly recommend, students take it.

And that strikes me as odd, for several reasons. At some basic level, the constitution is about the only thing, aside from geography, that we share as a nation. (I hasten to assure you that I use the word "share" very loosely, I have grasped that in many ways what most unites us are our bitter disagreements over what the constitution means.)  And while one could once assume that students who finished grammar school had studied the constitution (it was a requirement for graduating from 8th grade and from high school when I was a K-12 student), I assure you that that is no longer the case. My undergraduates rarely have studied the constitution before they take one of my history courses, and often have hazy (if not disturbingly wrong) ideas of what it provides.  I doubt they are unique.  Given that the constitution is no longer taught to younger students on a routine basis, I am puzzled by the fact that law schools are de-emphasizing it as well.

I've heard, I concede, the argument that there is no reason to waste a slot in the law school curriculum on constitutional law since most students at most law schools are not going to be Supreme Court clerks or ACLU attorneys.  I suppose that's true. But again, I was neither a Supreme Court clerk nor an ACLU attorney, and I spent five years writing memos and drafting arguments that rested on constitutional history and precedent. 

But more to the point, the argument that most law students are going to do bankruptcy, or real estate transactions, family law, or corporate work and don't, therefore, need constitutional law strikes me as resting on an oddly constrained theory of law. Don't property lawyers need to know something about takings or the scope of the provision that no state shall deprive a "person of ...property without due process of law"? In a post Citizens United world, wouldn't it help if corporate attorneys understood the First Amendment?  Might it not be that issues of citizenship, or equal protection, or religious freedom sometimes came up in family law cases?

But there's more to my confusion than that. The argument that there is no need to teach law students constitutional law because most of them will not be constitutional lawyers seems to me to rest on the strict category divides that drive law school curriculum. And those divides strike me as being both artificial and not the way the world works (or has worked).  There is slippage between most of law's curricular categories, as when a theory from torts influences contract claims or vice versa, and we all know that. But somehow, we can't work from that accepted principle to what seems to me to be the equally obvious principle that constitutional assumptions have shaped and will continue to shape many non-constitutional areas of law. Even if a divorce case involves no questions of citizenship, or equality, will involve theories of due process and equal protection of the law. And even if that divorce case is settled before trial, the likelihood of settlement and the willingness of the parties to enter into the settlement are, also, determined by professional and lay conceptions of process and rights that are, at their heart, constitutional.

So I don't think you can fence off constitutional law and say "we don't need to really teach it, our students will never use it." Nor am I persuaded by the argument that the best way to deal with any constitutional principles that might influence other areas of law is to raise the constitutional issues in classes that focus on those other areas. If all students read are three cases on the First Amendment rights of corporations in a corporations class, I'm hard pressed to believe they'll know much about the First Amendment or how it might effect a particular corporate client. The same is true if they read two cannonical cases on child custody and the constitution in a family law course.  In either case, you are giving law students the academic equivalent of a tourist's phrase book. That's hardly going to make them fluent or particularly inclined to try to become fluent somewhere down the line. It may not even make them capable of articulating a comprehensible request for help should the need arise.

It strikes me as a better argument that constitutional law courses as they are currently conceived don't provide a particularly helpful background for students, either. To make that point more directly, the strongest argument against my suggestion that lawyers in many areas of law might, sometimes, need to be able to address constitutional claims or think in constitutional terms as part of their work, is that the basic constitutional law sequence as it is taught in law schools really doesn't provide them with the sort of background that might help them.

But my response to that is that just proves we need to teach constitutional law to law students differently. I'll return to that in a latter post. For now, I'm interested in knowing if there are other arguments out there for dropping constitutional law as a required course, or reducing the number of con law courses that are routinely offered at a law school.