Late last month, I was a panelist at a symposium on constitutional law casebooks sponsored and hosted by the Institute of Bill of Rights Law and the William & Mary Bill of Rights Journal. With the Trump administration hurtling the country into multiple constitutional crises, that might sound like a staid, even boring, topic for a symposium. It was anything but.
As a framing device for what made the symposium timely and important, consider an article in the New York Times last year in which various liberal-leaning constitutional law professors described the difficulty of teaching constitutional law at a time when the Supreme Court is busily remaking the subject in a way that many of us find deeply disturbing. “Flat-out bonkers” is how University of Texas Law Professor Sandy Levinson, quoted in the article, described the Supreme Court’s opinion in an important recent Second Amendment case. He added:
I try to imagine, what if this were a seminar paper? Who knows what grade you’d give it? It’s so strange as an exercise in what we might call legal reasoning. But it’s not a seminar paper; it’s a majority opinion of the United States Supreme Court. So what am I supposed to do with that?”
The casebook symposium was largely the brainchild of Professor Levinson, who is also the co-editor of one of the leading constitutional law casebooks. The point he made to the Times reporter last year applies to selecting materials for a pedagogically sound casebook no less than it applies to teaching. And that is even more true today than it was when Professor Levinsion dreamed up the symposium last year. Our radically reactionary presidential administration’s unilateral efforts to remake the constitutional order are beyond “flat-out bonkers.”
That is not to say that all of the constitutional scholars who attended the symposium agreed that the enterprise of casebook writing and editing has fundamentally changed. Some authors who organize their books chronologically or largely historically opined that only the most recent materials needed to change.
Further, a couple of right-leaning constitutional scholars in attendance averred that for them, there was nothing new about organizing and teaching cases that they thought were wrongly decided. Indeed, we liberal law professors mostly agreed that this experience was familiar. After all, one doesn’t become a constitutional law professor without critiquing a substantial portion of the Supreme Court’s output.
But insofar as many of us (including me) think that what the Trump administration is now doing is fundamentally different from the Supreme Court overruling even longstanding precedents, the current moment presents a special challenge. Does it really make sense to instruct students on the precedents defining the scope of Congress’s power to delegate budget-cutting authority to the president or limiting the president’s ability to remove heads of independent agencies when the administration simply violates the laws it dislikes?
For me, the answer is yes—at least for now. Although the Trump administration and its allies have leveled troubling attacks on the judiciary, they haven’t yet sent tanks to surround the Supreme Court and end constitutional democracy. Until that happens and so long as there is a decent chance that the president will obey judicial rulings that go against him, it is worth teaching aspiring lawyers what the law requires.
Smaller Issues
Accordingly, even as we contemplate the looming constitutional catastrophe, we constitutional law professors will continue to face more mundane issues. In my contribution to the symposium—which will eventually appear in the William & Mary Bill of Rights Journal—I address one of those relatively small-bore questions: What cases that have been overruled should nonetheless be included in readings we assign to students?
To briefly summarize, my paper (which is not yet in a sufficiently polished form to share publicly) identifies four categories of such cases: (1) Anti-canonical cases (like Dred Scott v. Sandford and Lochner v. New York) that inform what modern constitutional law clearly rejects; (2) important recently overruled cases (like Roe v. Wade) that one needs to know about to understand what the overruling cases mean; (3) cases (like Abrams v. United States) that are important because they contain a subsequently influential dissent; and (4) cases that illustrate the plasticity of Supreme Court decision making because they show the Court going back and forth and sometimes back again.
Other papers and presentations covered a great many other topics and reflected the diversity of approaches to curating a constitutional law casebook.
Rhetorical Questions
No symposium would be worth the name without dialogue among the participants. The casebook symposium certainly contained its fair share, thus highlighting how we casebook editors make different pedagogical choices. I’ll focus on one such difference.
Berkeley Law Dean Erwin Chemerinsky began his presentation by stating that a constitutional law casebook should be measured by how effective it is at teaching. I cannot see how anyone would disagree with that. Dean Chemerinsky then said that he decided to write his own casebook because he found that his students were frustrated with the then-existing ones. Overcoming student dissatisfaction drove a number of his choices, including his decision not to include rhetorical questions in the materials following primary sources (typically Supreme Court cases). Because the casebook I co-edit does include such questions (albeit in moderation), I was inspired to think about whether that choice is justified.
On reflection, I believe it is, but Dean Chemerinsky’s presentation leads me to think that I could do a better job, both in the next edition of my casebook and when I teach out of it, explaining to students what they are supposed to be getting out of the rhetorical questions the book poses.
To begin, looking now at my casebook, I see that many of the questions my co-editors and I pose in the notes are not rhetorical. In many places, we ask a question and then we provide short quotations from or summaries of secondary literature that address the question. The question is simply a way of introducing some further material.
That said, we do sometimes ask questions without pointing students to sources that definitively answer those questions. Consider an example from the portion of the casebook for which I bear primary responsibility. In one of the notes after Dobbs v. Jackson Women’s Health Org., the case that eliminated the constitutional right to abortion, I pose the following question: “Would a federal law either restoring abortion rights as a matter of statute or banning abortions nationwide be constitutional?” The casebook note then briefly discusses some cases that would be relevant in answering that question but does not draw any firm conclusions.
Why did I put that question in the book? Because no one can really understand what the Dobbs decision does without considering it. The Dobbs majority opinion by Justice Alito says that overruling Roe v. Wade returns the issue of abortion to “the people and their elected representatives.” Which representatives? In public debate, politicians and journalists frequently say that Dobbs returned abortion to the states. But that’s not necessarily going to be true over the long run. The current Republican Congress and president might attempt to prohibit abortion nationwide. A future Democratic Congress and president might try to legalize abortion nationwide. Would such efforts be permissible? That question implicates a line of cases involving the scope of congressional power—cases that precede the abortion cases in my book.
An important goal of the rhetorical question I’ve been discussing and others my co-editors and I pose in our casebook is to lead students to think about implications of the case they might not otherwise have considered. An even more important goal is to model for students the kinds of questions they should be asking themselves when they read a case, so that when they examine precedents as practicing attorneys they will be able to discern not only what the case decided but also what questions it left open, raised, or complicated.
Occasionally a student will come up to me after class or visit me in office hours and say something like this: I thought I understood the material when I read it for class but after the class was over I was more confused than when I started.
The first time I heard that from a student, I worried that I must not be a very good teacher. Some probing, however, revealed that something else was going on for that student and just about every other one who subsequently voiced this concern. The student came to class with only a superficial understanding of the assigned reading, having not noticed one or more of the hard questions the reading implicated. In focusing on those hard questions, the class hour confused the student who was unprepared to discuss them.
That said, if all of my students consistently left class confused, then I would be doing a poor job of teaching. If class is going well, however, students quickly learn that before coming to class they must think deeply about the material, not just to skim the surface. Rhetorical questions in my casebook aim for the same effect.
To be clear, in defending the use of rhetorical questions in my casebook, I do not mean to criticize Dean Chemerinsky, who is a wonderful scholar and teacher. Each of us makes our own idiosyncratic and ultimately stylistic choices in the classroom and in putting together a casebook. Speaking only for myself, I have found in my teaching and casebook editing that there is a place for asking students questions—and for teaching them to ask questions—to which the current law provides no determinate answer.
