The canons of constitutional law: teaching with a political-historical framework.

• Author: Fisher, Louis

In my writings on constitutional law, I make an effort to provide a broad context so that readers and students can better appreciate and understand a court decision. I want them to understand the conditions that give rise to a court case and how those conditions influence what a court eventually does, either to duck a case or decide it. I want them to understand the role of other institutions, particularly Congress, the President, and the executive agencies.

I also devote considerable space to showing how the same constitutional issue is treated differently at the state level. By rejecting the "Supreme Court Only" model, I complicate the story of constitutional law somewhat, but this approach produces an account that is not only more accurate but more interesting. No one branch of government prevails. The process is polyarchal, not hierarchical. The latter, perhaps attractive for architectural structures, is inconsistent with our aspiration for self-government.

The task of understanding these dimensions has been made easier by my association and friendship with Neal Devins. Starting first with lunches, followed by jointly-written articles, moving on to Political Dynamics of Constitutional Law (now in its third edition), and with the completion of a book-length treatment of constitutional law in a democratic society, I have learned much about the ins and outs, the trends and patterns, of our legal process. Typically, after Neal and I battle out an issue, I am forced to return to my constitutional law text to rewrite sections and get it a little better.

1. A RICH DIALOGUE

   In my textbook, American Constitutional Law,(1) I do whatever I can, at every opportunity, to highlight the dialogue that exists among the judiciary, Congress, the President, the states, and the general public. The opening chapter sets the stage for these participants, including issues of judicial capacity for making social policy and the role of public opinion, lobbyists, and group pressures in identifying and defining constitutional values. Readings and boxed materials highlight Jefferson's position on the Sedition Act, Jackson's veto of the Bank Bill, and Lincoln's critique of Dred Scott. In Chapter 2, on judicial review, I provide many materials to keep Marbury v. Madison in its proper, limited place: statements by Madison, Justices Chase and Iredell, and John Marshall's letter to Chase, arguing that Congress, instead of impeaching judges for their decisions, should simply reverse legal opinions "deemed unsound by the legislature," for that would "better comport with the mildness of our character." Other materials in these early chapters, including one on thresholds, identify the many factors that limit judicial power.

   Throughout the rest of the book, I offer dozens of examples of this judicial-nonjudicial dialogue. Some constitutional issues never reach the courts, like the Ineligibility Clause (pp. 183-85). Two back-to-back readings explain how the Court strikes down the legislative veto but Congress--operating through committee and subcommittee vetoes--continues it (pp. 243-50); two readings show how the Court decides some high-profile disputes over executive privilege (the Watergate case) but other courts encourage congressional committees and the executive branch to settle their disputes outside the courts (the AT&T cases) (pp. 262-68); two readings illustrate how the Court can read presidential power broadly in Curtiss-Wright but Congress, in the Iran-Contra report, finds Curtiss-Wright deficient in reasoning (pp. 288-92); a box on page 347 explains how much Chief Justice Marshall in McCulloch borrowed from executive branch interpretations on the constitutionality of the U.S. Bank; one reading has the Court in Pennsylvania v. Nelson (1956) offering views about preemption, while the next has Congress lambasting the Court's ruling, followed by the Court backing away in Uphaus v. Wyman (pp. 423-26).

   So it goes. Although at times I have Congress championing and protecting rights left unsecured by the courts, I include readings to show how Congress has failed in its constitutional duties, as with the appropriations rider that led to United States v. Lovett (1946) (pp. 514-16). I also include congressional debate on the Sedition Act of 1798 (pp. 569-71).

   On religious freedom, I include President Clinton's 1995 memo on legitimate ways of providing for religious expression in public schools (p. 697), and follow that with a reading from congressional hearings in 1964 that helped build better support and understanding of the Court's decision in Engel v. Vitale, helping to forestall a constitutional amendment (pp. 701-02). When the Supreme Court in Zurcher v. Stanford Daily (1978) opened third-parties (including the press) to search and seizure, Congress responded with legislation two years later to...