Why impose a course on constitutional law on our students? Because it is very useful for lawyers to know about it, contrary to Sandy's assumption

michael curtis curtism at bellsouth.net
Mon Jul 9 19:42:03 PDT 2007

Re: Why impose a course on constitutional law on our students? Because it is very useful for lawyers to know about it, contrary to Sandy's assumptionI think the "either or" is far too stark--that one can do a lot of both and do it reasonably well.  Not everything, but quite a lot.  I agree about the centrality of slavery.  I would add the battles for free speech in American history, the Sedition Act, the parts of the constitution that are not in it--ie the expansion of the right to vote before the 15th and 19th, etc.  Inevitably much will get left out whatever one does.  1983 and its death and revival are part of the story of the first and second Reconstructions.  Once you understand it and how S-H & Crucikshank killed 1983 and incorporation the the Warren Court revived it--you have both some context and some useful understanding.  So students can learn about 1983 in context.  It is not either or.  I don't give attention to constitutional theories of secession, but we do teach Prigg and Dred Scott  & the framing of the 14th, the Black Codes, the Civil Rights Act of 1866, Reconstruciton and its demise, & the second Reconstruction, much of the history of free speech, the sedtion act, Patterson v. Colo., Schenck with enough of Schenck's pamphlet for example so one can know what he was jailed for saying, & Bond v. Floyd and a good bit of modern free speech as well as EP and SDP.  I don't think much of courses that are just the latest word.  On the other hand simply ignorning modern Free Speech, EP or SDP strikes me as leaving out a lot and a lot of the story.   But I think cases on every sub part of current EP--rather than a short textual summary is worth what you lose.

So yes, constitutional theories of secession are worthy of attention, but, as Sandy wisely points out, everything is a trade off.  I keep lots of context, but just would not trade off quite as much as Sandy.  True, a limited number of lawyers do cases involving 1983 ( a quite number I know have), but I don't understand why it is not useful for lawyers to learn about the possibility & have some idea what they are doing--if they choose, e.g. to do a pro bono or even paid free speech case, etc.  And anyway, it is central to understanding the role of Warren Court which is certainly a signficant part of our history.  Given that one can't do everything, I choose Reconstruction & 1983 and the 2d Reconstruciton over theories of secession.  As I see it part of what we are doing is training lawyers and part is about citizenship.  I try to do both.  I have a student who went to Iraq to work on Constitution framing who said, kindly, that con law was very useful to him (I can't explain how)-- (as was law and literature.)  I am sure Sandy on secession would be quite pertinent, probably more so.  The Constitution is an ongoing story, and I am sure there are many useful ways to look at it.  But I think discarding the role of preparing lawyers to practice (to some extent at least) on the theory that it is not useful or that one has to sacrifice all context to do is far to simple.  That view does leave us as teachers less constrained.  Perhaps some constraint is useful, however. 

Michael Curtis

  ----- Original Message ----- 
  From: Sanford Levinson 
  To: michael curtis ; Con Law Prof list 
  Sent: Monday, July 09, 2007 9:46 PM
  Subject: RE: Why impose a course on constitutional law on our students? Because it is very useful for lawyers to know about it, contrary to Sandy's assumption

  I'm grateful to Michael for his thoughtful comments.  I do agree that the most likely area of constitutional law for non-criminal lawyers is the dormant commerce clause, which, I believe, is increasingly going the way of state taxation of interstate commerce in disappearing from the standard syllabus (or maybe I'm simply projecting way too much!).  

  The real question, of course, is tradeoffs.  Is it more important, in an introductory con law course, that students learn how slavery was thorougly integrated into American constitutional law--enough so that one should seriously consider the proposition that Dred Scott was rightly decided--ot to omit any real discussion of slavery, or of the constitutional theories underlying secession, prevention of secession, and then "reconstruction"--or that they should be given the tools (which I still believe that very few of them will ever in fact use) to construct a well-pleaded 1983 case?  

  And, riding my own latest hobbyhorse, should we take some significant time to discuss the "hard-wired" Constitution, that will never be the subject of litigation, or simply continue to omit it?


  From: michael curtis [mailto:curtism at bellsouth.net]
  Sent: Mon 7/9/2007 8:31 PM
  To: Sanford Levinson; Con Law Prof list
  Subject: Re: Why impose a course on constitutional law on our students? Because it is very useful for lawyers to know about it, contrary to Sandy's assumption

  Sandy's conclusion --about teaching historical context--is correct.  He has
  been a leader in this and has certainly had great influence on me--though I
  doubt how well pure chronology works for teaching the areas of con law so we
  have followed a more mixed approach.  See Con Law in Context.  Of course,
  the problem is context takes more space.  Another problem is that the
  typical survey course has removed an important part of con law from what is
  taught to most students--free speech, press, etc.  This of course is a
  disgrace.  Sandy is also right I think that con law is crucial for
  citizenship in a democracy--another reason exporting free speech from what
  most students take is a disaster.

  Sandy's premise as to the uselessness of con law for lawyers only shows that
  Sandy has led a shelted life.  I periodically get calls from former students
  with con law problems.  Lots can arise in criminal defense--and beyond just
  crim pro.  A lawyer for Reynolds told me he thought con law was entirely
  useless when he took it and that now it is much of what he does.  Any 1983
  tort action involves some understanding of con law.  Criminal defense
  lawyers in NC at least are periodically involved in obscenity defense &
  often have selective prosecution issues.  A lawyer representing a
  reflexologist needs some understanding of con law when confronting an
  ordinance or proposed ordinance that would ban massages of persons of the
  opposite sex--not that the understanding would certainly produce a winner
  but understanding ideas like overinclusiveness--translated into
  English--would be helpful in arguing before e.g. a city council.  And of
  course needs to understand that state constitutional claims are a
  possibility and don't always follow in lockstep. Preemption of course is
  everywhere and now the commerce clause raises all sorts of live questions in
  every day criminal defense.    I know a lawyer who made lots of money based
  on understanding the dormant commerce idea.  Then of course people have been
  sensitized to state con law if the course is taught right.  One could go on.
  And on.  It seems to me that this is an example of how the academy is
  divorced from the practice--even to the curious extent of not understanding
  how important what the con law teacher teaches can be to the "ordinary"
  lawyer.  So having led a shelted life, the con law teacher devalues the
  practical importance of what she or he is doing.  Odd.  But of course, the
  less aware one is of the connection to law practice, the less connection
  there may be--see e.g. exporting free speech from the basic course or
  ignoring dormant commerce or preemption.

  Michael Curtis

  ----- Original Message -----
  From: "Sanford Levinson" <SLevinson at law.utexas.edu>
  To: "Con Law Prof list" <conlawprof at lists.ucla.edu>
  Sent: Monday, July 09, 2007 3:56 PM
  Subject: RE: Why impose a course on constitutional law on our students?

  > This comes under the category of shameless self-promotion.  Our
  > colleague Malla Pollack has founded a new (online) law review, the
  > American Justice L. Rev., and the first issue includes a piece of mine,
  > CURRICULUM."  It can be found at
  > http://www.ajsl.us/review/Pollack%20LevinsonforPUBLICATION.pdf
  > To make a longish story short, I argue that there's no good reason to
  > require constitutional law (as is done at most law schools, save for the
  > University of Chicago) in terms, e.g., of preparing students for the
  > bar--we don't teach lots of subjects that are covered on the bar--or
  > preparing students to practice law--most of our students will never have
  > a constitutional law case in their entire careers, though they are
  > likely to have lots of cases in subjects that we don't require, e.g.,
  > family law.  So, if there is a justification for requiring
  > constitutional law, as I think there is, it is to prepare them to be
  > good citizens and civic leaders.  But it should be obvious that
  > preparation for that role does not require that our students learn the
  > latest three- and four-part tests or most other contemporary doctrine.
  > Not surprisingly, I argue that it does require an historical overview of
  > American constitutional development (which can be taught, normatively,
  > as a story either of decline or progress, or neutrally as the way that
  > the Constitution, for better or worse, has actually developed over the
  > past 220 years) and paying far more attention that we now pay to what I
  > have come to call the "hard-wired Constitution."  Indeed, not to put too
  > fine a point on it, I think that the legal academy is criminally
  > negligent in failing to teach our students about what are in fact the
  > most important parts of the Constitution (which, of course, are never
  > litigated and most of which raise few questions of "interpretation" the
  > way legal academics define such questions).
  > Obviously, I would be delighted to read any responses, on- or off-line,
  > to my arguments, which are, just as obviously, meant to stir up a debate
  > (and not only to promote sales of my book and adoption of our casebook
  > :) )
  > sandy
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