Does "practicality" have a place in the "canon of constitutional law"?

• Author: Weaver, Russell L.

In this article, I talk about a hodge-podge of things that I do in my constitutional law classes and books. I am not sure that they rise to the lofty title of "The Canon of Constitutional Law," but I view them as worthwhile and worth discussing.

1. DIALOGUE

   In our constitutional law casebook, one thing we do is to engage in a dialogue among the authors.(1) I cannot take credit for this innovation; it was Don Lively's idea. We have a diverse group of authors (racially, sexually and ideologically) with quite different perspectives on constitutional issues, and this diversity produces very interesting discussions. We hope that the discussions benefit our students.

   For example, the debate on affirmative action is intense.(2) Don Lively questions the "wisdom of reliance upon legal innovation to fix an acute societal pathology."(3) I question the permissibility and desirability of race-based affirmative action, and argue that it should be replaced by programs that favor the economically disadvantaged.(4) I point out that such programs would have greater impact, yet "disproportionately favor" African-Americans and Hispanics, but would "generate less hostility since they function on a race neutral basis."(5) Dorothy Roberts and Phoebe Haddon articulate passionate defenses of race-based affirmative action programs.(6) Bill Araiza argues that "as long as there is a reasonable showing of real, explicit or structural historical discrimination with likely effects persisting to the present day, the equality principle of the Fourteenth Amendment must allow legislative attempts at focused race-conscious relief."(7)

2. BLENDING THEORY AND PRACTICE

   One of my constitutional law objectives is to blend theory and practice. I have done this for many years in my non-constitutional law classes.(8) In recent years, I have carried this blending over to my constitutional law classes and to a forthcoming First Amendment casebook.(9)

   Why do I worry about "practice" and "practical things?" After all, constitutional law is one of the few places where we can focus on the arcane without fear of criticism. I do so for a variety of reasons. First, in light of the MacCrate Report,(10) I have tried to integrate "skills training" into substantive classes. I realize that the MacCrate Report seeks more, but I place my students in "practical situations" so that they are better prepared for practice. Second, and perhaps more importantly, I believe that practical problems reinforce theory and help students take the theory to a deeper level.

   Permit me to provide an example. In Kentucky, the establishment clause is a hot issue. Despite the United States Supreme Court's holding in Stone v. Graham,(11) one Kentucky school district refused to take down the Ten Commandments. During the last year, nine other districts have re-posted the Commandments. From a "theory" perspective, one can easily say that all of these districts are acting unconstitutionally. Some of the districts have tried to distinguish Stone using what I consider to be makeweight arguments (i.e., the postings are permissible because copies of the Ten Commandments are paid for and posted by private groups). Nevertheless, those who want to challenge the postings face intense practical problems. Many of the districts where the Ten...