Saturday, May 7, 2011

Constitutional History?

What is it we study or teach when we study and teach constitutional history?

At the very least, it strikes me that whatever it is, it is not the same as legal history. But that is mostly because I’m not sure what legal history is. I can imagine teaching a course on the legal history of women, or on the history of criminal law, or on the history of the law of labor. But legal history, more generally, strikes me as simply a country’s history, taught using legal highlights (“in this period, dominant legal issues, at least in the South, related to slavery; fifty years later, corporations were a major focus of the courts”). Not that there’s anything wrong with that, I teach an American Legal History course myself with some regularity. But it is really a series of week or two week long mini courses on particular issues in law, strung together chronologically, not a subject on its own.

Constitutional history, in contrast, has a focus—the constitution of a particular country. But if it is focused on a particularly, clearly identifiable thing, the question of how that thing should be engaged remains.

Should a course on US constitutional history be a study of Supreme Court greatest hits? That’s what my undergraduates want to study, partly because they think it will give them a leg up on law school and partly because that’s what many of them think of when they think of law. But that’s also usually what my law students think it is (and want it to be), sometimes because it is a way of coming to grips with doctrines that they only sort of learned in con law class, sometimes because it is a way of reading cases on an area of law they did not cover in a class, and often because reading cases is what they expect to do and feel comfortable doing.

I’m sympathetic to all those perspectives, even though (perhaps especially because) I know almost none of my students will have anything to do with constitutional law if they practice law. At some level, to make the point another way, I not only accept, but embrace the idea that what I do is teach a high end form of civics. Somebody needs to, after all, and what better way to do it then through history, where we see the context of decisions (and the different points of view that led to the dispute) and can explore the impact of the cases on the parties or on others? And if, along the way, students learn how to find cases and read decisions, or we can demystify the law just a little bit, that doesn’t strike me as bad either. Anything that adds complexity or nuance (or both) to popular constitutional discourse strikes me as a good thing.

But that’s a history of constitutional law, and I’m not sure that’s all that constitutional history should entail. So I nudge my US constitutional history courses outside the courts; we read some documents and secondary sources that consider how and why particular constitutional debates sometimes were articulated or struggled over in the streets or legislatures, rather than the court system. Doing that reinforces the idea that, even when it is a constitution we are expounding, the law on the books is often not the same as law in action (or practice).

And at the same time, it shifts the focus of our study, even if only slightly, to the constitutional order as a whole. It raises questions about the role of different institutions in the constitutional order. For example, take the once-again-popular idea of “states’ rights.” If there is a power of interposition or nullification, where is it vested? In state governments or in the people of the state, acting in convention? History offers us several examples of people making arguments for a power to nullify federal law, and reveals the range of sites of that power, as well. What are the arguments for the different sites? What are the philosophical or doctrinal implications of putting this power in the hands of a state legislature or the people in convention? What are the arguments against the exercise of these different powers? How have decisions or practices rendered since those arguments were first made shifted the constitutional landscape and what is the significance of that shift?

I am hardly alone, I am sure, in teaching a constitutional history that goes beyond the case law to explore some constitutional practices in addition to constitutional precedent. But certainly I could go further than I do in reframing my constitutional history classes so that they are more the history of the US constitutional order, and less the history of the creation of constitutional doctrine and precedent.

But is that something that needs to be done? I can see lots of reasons to nudge constitutional history into a study of power, of relations (between parts of government, between governed and government), and of shifting theories of sovereignty or citizenship. Thinking of precedents (or legal arguments) as reflections of larger constitutional debates and discourses might give us a better perspective on principles that underlay those precedents. Shifting our focus so that we study how the constitutional system works (and has worked) rather than focusing our attention on what the courts tell us about the constitution might resituate the role of the courts in our constitutional order. Considering constitutional history rather than the history of constitutional law might help us better consider how, and when, the US constitutional system (or any nation’s constitutional system) participated in or contributed to global constitutional debates. And that, in turn, might give us ways, and reasons, to consider transnational and comparative constitutional study.

It strikes me that these are the sorts of issues that we should be engaging when we study or teach constitutional history, because it seems to me that the only way to understand a constitutional order is to understand all its facets, both internal and external.

But it also strikes me that that approach might be a hard sell to students, or administrators, who think professors of law (or legal history) should teach cases. And perhaps they have a point, I’m not sure. Are those of us who teach constitutional history (particularly US constitutional history) in the business of teaching cases, mostly, if not exclusively? If so, why? Because that’s what the customer wants? Because the US has a particularly legalistic constitutional order? Because professors in law schools (or professors in prelaw courses) study of cases? For some other reason?