The canon of constitutional law for undergraduate teaching: the melding of constitutional theory, law and interpretive empirical political science.

• Author: Kahn, Ronald

As a teacher of undergraduates, I want to make the argument that courses in American Constitutional Law should emphasize a wide range of topics, including constitutional theory, the process of Supreme Court decision-making, and how the Supreme Court brings change in political, economic, and social life into constitutional law. We should also present students with some of the methods of analysis and definitions of institutions and institutional change that inform the emerging historical institutional or politics and history approach to American political development. I have written elsewhere about the importance of teaching constitutional theory and the process of social construction by the Supreme Court as ways to bring the outside world into supreme Court decision-making. The following eight paragraphs are taken from that article, which may be hard for readers of this journal to locate.(1)

Intellectual movements, such as Feminist Theory, Critical Legal Studies, and Critical Race Theory, are central to understanding how political and social change is facilitated through law. Students want to know how change in constitutional law occurs and how such changes inform the process of change in the wider society. The link between such intellectual movements and legal change requires a consideration of the role of the interpretive community in the development of constitutional law. Why do very smart constitutional scholars seek to develop new constitutional movements, theories, and ways of looking at constitutional questions? Why is so much passion exhibited by scholars and their students in support of or in opposition to feminist, critical legal studies, and critical race approaches to the law?

One reason for the important role of such intellectual movements is that scholars are trying to influence the "interpretive community." According to Owen Fiss, the interpretive community includes jurists, legal journalists, practitioners, legal change advocates, other scholars, and the informed public. Scholars are trying to persuade the interpretive community to accept new conceptions of what the polity and principles in constitutional law should be, as well as how they should be applied. For instance, civic republicans, such as Cass Sunstein and Frank Michelman, contend that ensuring rigorous informed deliberation on constitutional matters can only be facilitated by engaging the general public. For feminist scholars like Catharine MacKinnon, the objective is to demonstrate the impact of gender-based power disparities in society at large on law and the legal system. Critical legal scholars argue that "the law" is what judges say it is. Since judges are from the upper class and accept the value premises of the wider society, such as those of capitalism and pluralism, court decision-making is not viewed as autonomous from class, social, and political structures in societies. Thus, for critical legal scholars, class, social, and political inequalities are simply reflected in the law. They therefore understate the force of law and legal institutions on social change.

To understand how the Supreme Court is influenced from without by social and political forces, students should become aware of differences that exist among members of the interpretive community on how individual rights intersect with judicial decision making. Additionally, they should be exposed to the role that courts play in the wider political system, as well as how political, social, and economic considerations affect court decisions. They must consider such questions through the study of conventional constitutional theories as well as in representative scholarship from new intellectual movements. These intellectual movements allow new questions to be asked about social and political change, questions whose answers could positively affect society as a whole. Examples include: To what degree has constitutional law met the needs of a changing society? Which ideas central to these intellectual movements have made their way into constitutional law and why? How is the rule of law affected, positively or negatively, by the central contentions developed by Critical Legal Studies (CLS), Critical Race Theory (CRT), and Feminist Jurisprudence? What elements from more conventional constitutional theory can actually help sustain political and social change in a diverse society?

Students should also come to see how scholars from these intellectual movements understand the role of law and courts in the process of political and social change. They should begin to evaluate the implications of focusing on the critical approaches to constitutional law just as they must consider the implications of relying on conventional rights-based constitutional theory. Similarly, in exploring cases with students, instructors need to identify examples in which Supreme Court justices accept or reject premises that are central to these critical intellectual movements. This practice is consistent with what we do in our analysis of more conventional approaches, including our theoretical assessments of originalism and non-originalism in constitutional interpretation. For example, why does the Supreme Court talk of "personhood" rather than privacy in Planned Parenthood of Southeastern Pennsylvania v. Casey, the decision in which a Supreme Court consisting of a majority of Reagan-Bush appointees refused to overturn the fundamental right to abortion choice first enunciated in Roe v. Wade?

Study of these intellectual movements is very exciting to students because...