The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A new constitutional law casebook for our unsettled age
I spent much of last year doing something somewhat unusual for a junior faculty member—working on a constitutional law casebook. With most law students' and professors' semesters ending (we here at the University of Chicago still have a few weeks to go in our quarter), I thought I'd write a little bit about why.
The book I joined—"The Constitution of the United States," by Michael Stokes Paulsen, Steven Calabresi, Michael McConnell and Samuel Bray—had already been through two editions. Each edition, including the third, has reflected a fairly substantial overhaul that has made the book (I think) better and better, but it has retained a basic organizing principle that sets it apart from most other constitutional law casebooks—the centrality of the Constitution itself. Without speaking for my co-authors, who have been on the book for far longer than I have and have written an excellent preface, I thought I'd explain why I think that organizing principle is so important to teaching constitutional law.
First, it means that the book is organized around the actual Constitution, rather than categories of doctrine or epochs of history. The "Separation of Powers" chapter begins with Article I, then goes on to Article II and Article III, rather than placing Marbury v. Madison and the Supreme Court at the very beginning of the course, as many professors do. After this comes federalism and Article IV, then the amendment process and Article V. Similarly, the chapters on individual rights and equality are organized by the Bill of Rights and the subsequent reconstruction amendments. The hope is that students will never forget that it is the Constitution that they are expounding.
Second, this means a focus on the established methods of constitutional argument, rather than an up-to-the-minute (and hence soon-to-be-dated) snapshot of doctrinal minutiae. To understand the scope of the president's power to remove various executive branch officials you need to understand text, history, structure and two centuries of practice, not just the latest Supreme Court case. (There will be a new latest Supreme Court case soon enough, but it will debate the same arguments from text, history, structure and practice.)
Relatedly, it means that the book tends to have longer excerpts of fewer cases, on the premise that it is more important to teach students how to actually follow and critique constitutional arguments, rather than just to memorize who won and who lost and move on.
It still has some important Roberts court cases, of course—Zivotofsky v. Kerry and NFIB v. Sebelius and Obergefell v. Hodges, for instance—but it also has substantial coverage of cases that other books omit or edit down to nothing, such as Luther v. Borden and Morrison v. Olson and Bakke v. California Board of Regents.
Third, this means that judicial review and Supreme Court precedents are only part of the story. The book includes substantial amounts of nonjudicial interpretation alongside judicial interpretation, and historical materials, including drafting and ratifying history, early congressional practice, etc. This means you'll find passages from James Madison in the sections on non-delegation, executive removal, sovereign immunity, the necessary-and-proper clause, the spending power and plenty more. It also means you'll find signing statements and Office of Legal Counsel opinions from the Obama administration and plenty in between. Indeed, I almost hate to call it a "casebook," because part of the point is that constitutional law is not only about the cases.
(If I have piqued your curiosity at all, you can download a sample assignment on the drafting of the 14th Amendment, or the introductory assignment on the background to the adoption of the Constitution, as well as the Table of Contents.)
Now, I am too afraid of becoming a law-professor cliche to say: In the age of Trump, this kind of casebook is needed more than ever. But I don't think it is too much to say that we are living in a time of unusual constitutional turmoil, in which the Constitution outside the courts is unusually important. It should be taught in law schools. This is also a time when the Supreme Court itself is taking an increasing turn to text and history, and I suspect that will continue with the newest appointment to the court. So we may be able to improve upon casebooks whose organizing premises date to the Warren and Burger courts.