Constitutional law's loose canon: are we running software without the operating system?

• Author: Lively, Donald E.

The canon of constitutional law, like any fundamental principle, is a function of the values that inspire it. If a meaningful learning experience is the overarching concern, the common denominators of constitutional law casebooks should reveal the canon's general shadings. Insofar as casebook authorship until recently was the province of a relative few, the canon's analysis and indexing have been a rather hierarchical enterprise. Recent trends in publishing, however, have expanded the sources of and opportunities for definition. Among other things, these developments have complicated the ability to monitor the canon or track its permutations.

Although the market ultimately has limits to the amount of mass distributed hard copies it can absorb, the forces of electronic interactivity and utility are coalescing toward reducing the significance of these barriers. Expanded access to electronic data bases already has freed instructors, in theory if not always in practice, from the procrustean hold of standardized source materials. With the publishing industry itself aggressively encouraging instructors to generate individualized casebooks,(1) autonomous selection is emerging as a realistically convenient and viable alternative to authoritative selection.

To the extent editing and usage become more coextensive, the canon's definition may be subject to dynamics that are more populist than elitist. Decentralization of the editorial process presumably creates the potential for higher diversification and innovation quotients. Whether an expanded community of authors affects the canon in ways that formally register depends upon the capacity of or opportunity for self-generated distributions to travel beyond closed circuits. At a minimum, greater individualized control over course material construction multiplies the possibilities for recalibrating the canon at the user level.

With more fermenting sources in the definitional mix, albeit in a less visible way, the possibility arises that a broader range of inputs may yield a more multifaceted canon or even competing canons. Constitutional law traditionally has been noted for its special capacity to facilitate intellectual growth and development. Depending upon their backgrounds, interests, and aims, instructors may discern the opportunities that core constitutional courses present for professional skills development. An unsettling factor, even at schools where students have strong traditional quality indicators, is a widespread impoverishment of knowledge with respect to history and other contextual under-girdings that are prerequisites for a meaningful constitutional law learning experience.

These deficiencies confront legal educators generally, and constitutional law instructors in particular, with an unwelcome dilemma that may have significant implications for the canon. An idealized curriculum would proceed safely upon the assumption that secondary and tertiary education had prepared students for a reasonably sophisticated inquiry into constitutional principles and theories. Expectations of such readiness are quickly dispelled at many institutions by asking simple questions on the first day of class, such as "what document contains the passage `life, liberty, and the pursuit of happiness?'"(2)

Insofar as institutional disparities exist with respect to student qualifications, the canon for practical purposes may have variable meaning. The extent of its fluidity, however, hinges upon the willingness of instructors to assume enrichment or remedial responsibilities. Fidelity to a fixed canon, in a context of diverse competencies, competes against the reality that law schools not only educate but certify the professional fitness of their graduates. Assuming that a law school's certification attests to more than a vocational and technical proficiency in the law, it is difficult to escape a sense of obligation to enhance the basis for a congruent learning opportunity and...