Tuesday, May 10, 2011

More on constitutional history

To follow up on some points, questions, issues, etc raised in the comments to my last post.

I think that by and large US Constitutional studies, historical or otherwise, are more court centered than not. There is an exchange about different countries' constitutional scholarship in the International Journal of Constitutional Law, in 2009 (vol. 7 no. 3), and in it Robert Post argues that US constitutional study is different from, and far more court centered/legalistic than, European constitutonal study.

I might not put it exactly the way Post does (though I need to think about that, so perhaps I'll return to that issue in a later post). But I would say that generally constitutional scholarship in the US is court centered and reactive, by which I mean that constitutional scholarship reflects on what the courts (especially the Supreme Court) decide (or ignore) and responds to it. I'm pretty sure I don't think that's a good thing, either for constitutional history or for constitutional study more generally. But the question is how to break out of that box.

To that end, it might be interesting to do some sort of blog symposium on syllabi. At the very least, perhaps we should think about pulling together collections of legal or constitutional history syllabi in some sort of clearinghouse, the way Jurist used to do. My own syllabi (almost all of them, I think) are available on my webpage, at the link for legal history syllabi. (For those of you keeping score at home, the undergraduate courses that I teach in legal or constitutional history have 3000 or 4000 level numbers, the grad and law courses have numbers at the 5000 or 6000 level.)

To respond more completely to Mary's question, how much I manage to avoid teaching the Court's greatest hits depends a lot on who I'm teaching. My undergraduate Constitutional History course is a two semester class, so while we do a lot of cases I do get to go beyond just teaching cases and we read four books a semester to amplify the cases we do read. Since it's an upper level course, I also assume that the students have a fairly good grasp of US history (they aren't all history majors, however, so that assumption can be tested, alas). But that assumption also means that we can cover cases in a fairly complex context in class.

In contrast, my law school Constitutional or Legal History courses are just a semester, and often only two hours a week (compared to three for the undergrads). The law students do not like to read lots of books, or full opinions, so I routinely get evaluations that complain I assign a book a week (which isn't remotely true) or too many pages of opinions.

While I can't say I am terribly moved by those objections, it's hard under those circumstances to come up with a law school course that goes beyond the greatest hits, especially since I can't assume that law students have a firm grounding in US history. For my law school courses in constitutional or legal history, I tend to do three things:

First, I've begn to focus the law school course on a particular sub-topic. I recently taught a course called something like US Constitutional History: Citizenship. There we got away from S.Ct. greatest hits and read articles, a couple of books, and some lower court cases, etc. More to the point, we also got into issues of what citizenship was, and how people exercised their citizenship, in addition to questions of who were citizens when.

Second, I typically lecture to my law school courses (I don't when I teach a seminar, but my Constitutional or Legal History courses tend not to be seminars). This way I supply the context and complexity that lies beneath the cases we read. I taught an American Legal History course one semester that was called something like Legal History of the Law of Work and Workers, whichi was a course on labor and employment laws before the New Deal. There we read some cases and articles every week, and in addition I posted the extra works I used for my lectures every week on the syllabus. That seemed to work pretty well, though it was a lot of effort.

Third, I typically do an extra hour of course work for grad students to supplement the law school course. I teach that as a small reading group that meets every other week or so for an hour or an hour and a half; sometimes we do it in a face to face session, sometimes we do it as a chat online. That lets me assign more books to the grad students and let's us engage the more complicated or theoretical issues in the secondary literature. But its a sort of Rube Goldberg affair that tends to renforce the divisions between the students. It's also hard because the grad students are often, though not always, wrestling with cases for the first time. That means that they are less comfortable with the underlying material than they would be in a "regular history" course, so there's a certain amount of background work that has to be done there.

It's hard to figure out a good way to resolve how to appeal to these different groups in the same class. I've been fortunate to have several grad students who came into the program with JDs in hand. That obviously makes it easier to focus on the historical context and theoretical issues in the grad parts of the class. But I don't want to make a JD a requirement of being admitted to the PhD program (I also don't think I could).

We have experimented a bit with having grad students take some core courses pass/fail at the law school, to get them familiar with legal reason and assumptions. I think that the students who did this found it easier to work with legal materials afterwards, and so that seems like a possible solution. Typically, however, we don't want grad students to do that until they've had a year or so of grad work done (for a variety of reasons that have to do with other requirements), so that means that first year students with an interest in legal history (or MA students) don't have the benefit of that opportunity.

We have a joint degree program, which works quite well for MA/JD students. But for PhD students it's a complicated logistical issue and a financial burden, since their fellowships do not typically extend to cover law courses and law schools typically do not provide fellowships. In the current job market, I hesitate to tell a grad student to take out loans to go to law school, so the funding issue is significant.

Needless to say, when I teach comparative constitutional history, which I do about once every other year, it's even more complicated. But that's a subject for a later post.