Why impose a course on constitutional law on our students?Because it is ...

Howard Schweber hhschweber at facstaff.wisc.edu
Tue Jul 10 10:00:51 PDT 2007

----- Original Message -----
From: Mark Graber <MGRABER at gvpt.umd.edu>
Date: Tuesday, July 10, 2007 7:58 am
Subject: Re: Why impose a course on constitutional law on our
	students?Because it is ...
To: conlawprof at lists.ucla.edu

> Several years ago I wrote an essay, "Constitutionalism and Political
> Science: Imaginative Scholarship, Unimaginative Teaching," 3
> PERSPECTIVES ON POLITICS 135 (2005) (always happy to mail reprints,
> though should be available on line), the central theme of which was that
> political science professors should stop teaching doctrinal
> constitutional law courses
Full disclosureL  I was one of the teachers who was mentioned -- in an unflattering light -- 
iin Mark's essay.  That being said:

To my mind there are four distinct approaches to teaching the Constitution:  legal (doctrine 
and practice), historical (constitutional development in the larger context of American 
political development), philosophical (identification and discussion of the political theoretical 
arguments at work in arguments about the Constitution) and political (arguments about the 
Constitution situated in American political ideologies).  These overlap, obviously:  if one 
takes a philosophical approach, one can look for significant  political theoretical debates in 
constitutional doctrine and court cases or in arguments heard outside the courtroom.  

My own approach is philosophical.  Until now, that has led me to focus more on current 
cases and court-driven doctrine than Sandy or Mark would probably like, because my goal 
has been to lead students -- many but by no means all of whom are headed to law school -- 
to an understanding of the debates about the meaning of the Constitution that are going on 
today.  Someone who has just finished a year-long course on constitutional law should have 
something useful to say when a dinner conversation turns to the latest rulings of the Court; 
if my work as a teacher includes the promotion of citizenship, that enhanced ability to 
discuss current cases and controversies seems to me central to my project.

So I use historical context and development in order to set up those questions.  That means 
that I do not assign a text about railroads, telegraphs, and the McCormick reaper, but I talk 
about those things to introduce Munn v Illinois, just as I talk about Washington's 
mobilization of the militias against the Whiskey Rebellion when we are reading Second 
Amendment cases.  (In the process, incidentally, I cover all the topics that Sandy has 
described as moribund, including First Amendment and dormant Commerce Clause issues, 
precisely because they remain live issues today.  I talk about delegation doctrine for the 
same reason.)  But I don't spend time talking about the Bank of the U.S., for example, 
because it is not a class in American history.  And when students see that dormant 
commerce clause and delegation are live issues, they become excited about them and some 
terrific discussions  ensue.

But! I am reconsidering my approach.  The reason I am reconsidering my approach is that I 
have had a chance to see a draft of the forthcoming Gilman-Graber-Whittington text.  
Which is,  quite simply, superb.  A monumental amount of work and thought organized in a 
clear pedagogical program that I cannot wait to use.

*Sigh*   Just when I thought I was finally getting the hang of this.

Howard Schweber
Dept. of Political Science, UW-Madison
Affiliate Faculty:  Law School, Legal Studies, Integarted Liberal Studies 

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