Teaching the Canon and the Anti-canon of constitutional law
Dear Constitutional Law Professors:
We are delighted to announce that the Third Edition of Constitutional Law: Cases in Context will be published in December 2017, in time for Spring 2018 classes. We recognize that choosing a casebook is one of the most important decisions law professors make. In a crowded marketplace, our reinvigorated text stands out for professors and students alike because of its clarity, context, and consideration.
Clarity
In preparing the third edition, every page was reviewed and re-edited with a primary focus: clarity. Placing ourselves back in the shoes of a 1L, who has never before studied this material, we rethought from the ground up what works, and what does not work. Specifically, we sought to provide students with a more accessible and engaging way to learn constitutional law than is now available in existing casebooks.
First, after extensive market research, we concluded that most textbooks-especially those that have evolved through many editions over a long period of time-are simply unrealistic about what students can actually learn in a three or four-credit course. Most books drown students with tedious notes, commentary, and "squibs" after the cases, which many students skip anyway (but professors dread being asked about). We chose a different path. Before each decision we include a clear, easy-to-understand study guide that consists of a series of precise questions. These leaning objectives pinpoint what students should take away from the reading-we do not hide the ball.
Second, rather than assuming that students will grasp complicated procedural postures, we provide them with the background information necessary to dive right into the cases. For example, if a decision involves a complex regulatory scheme, or considers an obscure historical event, the study guide will offer a brief synopsis of extraneous facts so students can instead focus on what's important. Further, our casebook includes dozens of photographs of the people and places behind the cases. These additional pictures and tidbits of information will make the study of constitutional law come alive, and differentiates our text from all others.
Third, we divided each chapter into a series of Assignments, which average thirty-pages in length. The readings are long enough to help students understand the arguments, but edited where necessary to prevent overwhelming them. Where feasible within each doctrinal category, the canonical cases are presented chronologically as they were decided. Learning how a line of cases developed conveys the story of constitutional law that every literate lawyer ought to know. With our ready-made syllabi, professors can rearrange the materials to fit into three, four, and six-credit courses.
Finally, the Third Edition will allow professors to flip the classroom. Students will be able to access an online catalogue of short, focused, three-minute videos about each case in the book. The videos will discuss the facts, posture, analysis, and holding of the cases, centered around the study guide questions in the book. Building on modern learning techniques, students can better prepare themselves online before class. Professors will be empowered to spend more class time diving deeper into analysis and reasoning of the content.
Context
The theme of the book is reflected in its title: Cases in Context. Constitutional law has not developed in a vacuum. Rather, over the course of two centuries, all three branches of our government have interpreted the Constitution's seven articles and twenty-seven amendments in the context of complicated, real-world events. Professors take our knowledge of this story for granted, having picked it up along the way. But for most students it is entirely new and more than a little strange. This story is almost impossible to grasp when confronting disparate cases completely divorced from the context in which they were decided.
The Third Edition aims to place each of these developments in the proper context. All students-even those unfamiliar with American history-will learn the essential background information to grasp how this body of law has come to be what it is today. To do that, we hew to discussions of first principles and method, rather than doctrinal details.
Consideration
We believe that constitutional law is actually practiced-and doctrine developed-by hewing to the canonical cases, while avoiding those in the "anti-canon." Our casebook is organized accord to this principle. By including all of the classic cases in the "canon," as well as those in "anti-canon," the Third Edition provides the basic vocabulary of constitutional law. As important, our book nonjudgmentally conveys the competing narratives that account for why some cases are canonical and others not.
We are originalists, but our book is designed to convey to the students how and why constitutional law has developed as it has so they can practice law as it is, not as we might like it to be. While Justice Kagan may have said that "we are all originalists," we teach our own students that the original meaning of the text plays but a small part in the evolution and practice of constitutional law. And our casebook reflects that teaching philosophy.
Moreover, every constitutional law professor must acknowledge that the Supreme Court is divided, with each "side" having its own narrative about our constitutional past. Because we share neither narrative entirely, we are in a good position to present each fairly and dispassionately. We approach this casebook as we would approach the Court in a constitutional case: trying to speak to both sides in the language they appreciate. In our experience, this approach is effective in the classroom as well.
Regardless of how professors may view these issues, Cases in Context will provide students with a balanced perspective. Consideration of all sides of all issues will enrich the pedagogical experience, and more importantly, will better equip future attorneys with the different modalities of argumentation they need to appeal to different judges. And with less opinionated supplementation by the casebook authors, each professor can put his or her own stamp on the story as it unfolds. It is up to you to say which side you prefer, if you choose to reveal that.
To the professors who have chosen to adopt this book, we thank you. Please feel free to contact us with any questions.
Randy Barnett, Georgetown University Law Center
Josh Blackman, South Texas College of Law Houston