Balkinization  

Tuesday, May 15, 2012

Con Law in the Round

Ken Kersch


A few weeks back, I (along with Anna Law and Tom Keck) joined Howard Gillman, Mark Graber, and Keith Whittington for a panel at the Midwest Political Science Association meeting on their new constitutional law casebook, American Constitutionalism: Vol. 1 – Structures of Government (Oxford, 2013)(Vol. 1 out now; Vol. 2 – Rights and Liberties, will be available soon).

These books are primarily aimed at undergraduate courses in Constitutional Law and Civil Rights and Liberties (known in political science departments as “the sequence”: structure and powers in the fall; rights and liberties in the spring). There are, of course, plenty of casebooks out there for law students and for undergraduates. The publication of this particular text, however, is unusually significant for teachers and scholars at all levels. On the panel, I joked that it is possible that, after taking the course using this text, our undergraduate students will know more about American constitutionalism than the professors teaching their con law courses in law school.

I exaggerate, of course. But there was a point. Conceptually, at least, GGW is significant in the way that a handful of major casebooks have been in the history of case-law instruction in America (e.g. Christopher Columbus Langdell’s Selection of Cases on the Law of Contracts (1871); Leon Green’s The Judicial Process in Tort Cases (1931); Henry Hart Jr. and Albert Sacks’s The Legal Process: Basic Problems in the Making and Application of Law (c. 1958)). Gillman, Graber, and Whittington, of course, are leading historical institutionalist/American Political Development (APD) scholars. Their innovation is their insistence on treating constitutional law in the round – as part of a world in which the constitutional doctrine expounded by the Supreme Court is just one part of a broader multifaceted constitutional system, built over time, in which durable norms and rules of government are made not just by the High Court, but elsewhere: by the people, by politicians, by state judges, congressmen, bureaucrats, and administrators, each interacting to shape and structure the ways of doing things we know as American constitutional government.

The GGW “casebook” accordingly integrates the most important Supreme Court opinions with important state court decisions, public criticisms of U.S. and state Supreme Court decisions, and constitutional debates (taking place in varied venues) about territorial acquisition, the constitutionality of a national bank (Alexander Hamilton v. Thomas Jefferson), secession, the legitimate uses of the veto power, the death penalty (Benjamin Rush), the military draft (Daniel Webster v. James Monroe), the president’s war powers, etc. (see the table of contents, sample chapters and other materials via the link provided above).

The GGW text successfully transcends what I would describe as the twin snares of the contemporary academic study of U.S. constitutionalism: 1) Scientism; and 2) Solipsism. Scientism is, of course, the snare originating from political science. It aspires to sharply separate fact from value, and, when obsessive in its quest for the fact, is too often drawn into reductionism and methodological fetishism. A sense of depth (not to mention judgments about which findings of fact are important, and which are trivial) is lost. Solipsism is the snare originating from the legal academy, where there is a tendency to write as if the subject of American constitutionalism is reducible to the doctrinal arguments and pronouncements of the U.S. Supreme Court. When it is helpful, GGW avails itself of “hard” political science, just as it avails itself of Supreme Court decisions. But it does not allow either to define the subject, which is much more dynamic, dialogical, value-laden, and historically-constituted – more complex and interesting in its processes and powers -- than a committed scientist or solipsist can see. Of course, the most sophisticated students of American constitutionalism have long understood this. But many haven’t written as if it were true, or taught as if it were true: all the disciplinary incentives were otherwise. GGW invites them to start talking about what many already know to be true in a way that does justice to that truth.

One key thesis of this book, as I read it, is that the study of American constitutionalism should not be about just a few time-tested questions (Are the Supreme Court Justices following the law, or doing politics? Can we accurately predict how judges will “vote”? Is judicial review legitimate in a democracy? ). American constitutionalism, in practice and theory, is an endlessly fascinating universe, a cosmos. The objective of a constitutional law professor/political scientist, the authors suggest, should be to help his or her students to see this universe. Then -- even if they return to the familiar few questions that have largely monopolized the discussion -- they can at least understand where they properly fit into the larger picture. They can, that is, approach them with some wisdom.

Let’s be honest: one real problem with trying to understand constitutionalism in the round is that it is really hard. You have to know a lot. This isn’t easy for professors. It’s really hard for students. Teaching, in significant part, is about simplifying (or at least judiciously finding the right admixture of simplifying and complicating). Gillman, Graber, and Whittington have been working on this book for a long time. Early drafts of were so packed with context and lesser-known constitutional articulations/episodes/decisions/events/incidents that I thought that -- despite its being a major scholarly accomplishment in the retrieval of American constitutional theory and practice -- it was all but useless for teaching. But, as an early skeptic, I can report that the authors have fixed this. They have done so by saving the deep well of original historical scholarship that they don't use in the text to be published separately (either online or in a separate book -- TBD), and by re-fashioning the casebook in a way that streamlines the subject for accessibility. The result will be a boon to students and scholars alike.

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