The Yale Law Journal


Reconsidering the Syllabus in “Constitutional Law”

16 May 2008

Ernie Young has written a superb article on what he engagingly calls “the Constitution outside the Constitution.” Like analysts before him, most prominently Karl Llewellyn, he notes that our system, like all complex systems, can be understood only by considering all of the conventions that could never be found in the text of the document (and, on occasion, may even contradict the text). A subtext of his article, with which I entirely agree, is that contemporary students are disserved by what constitutes the present syllabus of the standard-model course on “constitutional law.” Yet Professor Young can’t quite liberate himself from the notion that our courses should focus on existing legal “controversies,” or on what is presented to courts in litigation, instead of on the almost literally thoughtless and optimistic assumptions we make about the benevolence of all aspects of our constitutional order as framed in 1787 and maintained, to an almost incredible degree, over two centuries later.

Professor Young argues, altogether correctly, that any understanding of our modern constitutional order requires recognizing that many statutes are now so firmly embedded in our polity that it is no more thinkable that they can be eliminated by a future Congress than it is that cherished parts of the textual Constitution will be amended away. Formal entrenchment is only one aspect of understanding something as a “constitutional norm.” Those charged with teaching something called “constitutional law” should rethink, in quite basic ways, what we are doing and how present ways of approaching the subject may be disserving our students and, ultimately, our country.

Perhaps we should begin by asking why almost all American law schools require their students to take constitutional law in the first place. As I have recently argued elsewhere, it is not clear at all that there is a justification for continuing to do so, at least with regard to most courses (and casebooks) as they are currently conceived. After all, few students will practice “constitutional law.” Students even at the Yale Law School are far more likely to practice corporate or tax law (neither required) than “constitutional law,” unless they should be litigating dormant Commerce Clause issues for their business clients. If there is a justification for requiring constitutional law—and not, as at the University of Chicago, leaving it to the free choice of students, as with these other subjects—it is, I believe, because in training students to be lawyers, we are, for better and for worse, also training them for roles as what might be called “leading citizens.” (I put to one side the possibility that we are training them for future positions in the legal academy.) That is, many of our students will be asked to accept, or run for, positions of public leadership; not at all insignificantly, they will be also be asked to speak to local civic organizations and their children’s classes on such ceremonial occasions as Law Day (May 1) or Constitution Day (September 17) about the legal system. The laity assume that those who possess law degrees are especially appropriate as informants about our sometimes mysterious constitutional order.

The real thrust of Professor Young’s piece, as I read it (perhaps through my special filter), is that such confidence is misplaced, that the future leaders we are charged with training have a woefully inadequate understanding of the operative Constitution as it functionally exists in 2008. We should therefore ask ourselves what is more appropriate for twenty-first century lawyer-citizens to learn.

He may be correct that “much—perhaps even most—of the ‘constitutional’ work in our legal system is in fact done by legal norms existing outside what we traditionally think of as ‘the Constitution.’” But, I believe, he pays insufficient attention to the crucial importance of what I have come to call the “hard-wired” features of our Constitution that, like the Social Security Act and tacit conventions, are almost grotesquely ignored in the standard-model course on “constitutional law” (that will, for many law students, be the one and only confrontation with the subject). I am drawing from my book Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), which argues that a number of these hard-wired aspects—bicameralism; the electoral college; the allocation of power in the Senate; the presidential veto; the fixed-term presidency; and the functional impossibility of affecting change through Article V—are far more important, for someone seeking to understand our constitutional system, than what is taught in most of our courses.

I now believe that if law professors were charged with teaching a course on “icebergology,” their students would learn only about the ten percent of the iceberg that is visible above the water and would never understand why the Titanic sank. It is a merit of Professor Young’s article that law professors who accepted his ideas might teach their students about fifty percent of the iceberg, which would be a substantial improvement. But I still fear that as future civic leaders they would nonetheless be deficient because of their lack of knowledge of the remaining part of the iceberg (or, as Guido Calabresi might grandly put it, “the cathedral”).

The heart of the difference between Professor Young and myself can be found in his comment that “the particular rules enshrined in the Constitution will themselves rarely have significant bite on our most important constitutional controversies.” A footnote adds, “This is partly because the core operations of many of the most important clauses in the Constitution—such as those setting forth the general structure of the branches of government—are uncontroversial and rarely litigated.” He is correct, but that is the problem. It is, frankly, appalling that the “hard-wired rules” are not controversial. It is readily understandable why they are not litigated. Only in the highest of high theory seminars is it controversial when Inauguration Day will be. But might we not ask if it makes the slightest bit of sense, in the twenty-first century, to have a ten-week hiatus between, say, the repudiation of a sitting president during time of war and the inauguration of his or her successor? It is probably impossible to summon up a non-frivolous argument that Wyoming’s possession of the same voting power in the Senate as the seventy-times-as-large California is unconstitutional. But we surely might ask if it conforms with the late twentieth- and twenty-first-century notion that our constitutional system should be assessed by its conformity to the norm of equality and “one person-one vote”?

Near the end of his article, Professor Young complacently writes that “most of our constitutive work [is] done outside the Constitution itself. That, I submit, is why we remain able to work within the same set of basic entrenched commitments two hundred-odd years later.” Like another friend, Bruce Ackerman, Professor Young acknowledges—and, indeed, celebrates, the possibility and reality of what he calls “[e]xtracanonical changes,” even if he rejects Professor Ackerman’s particular account of how that change occurs. I think that both of these esteemed scholars miss the reality of the unchanged “iron cage” imposed upon us by the Constitution. “To a great extent,” writes Professor Young, “our constitutive arrangements are not entrenched to the point that they would require a formal amendment—or a constitutional ‘moment’—to alter.” It all depends on what you mean by “great extent.” Are all of our “constitutive arrangements” entrenched such that they require an Article V amendment or the sturm und drang of an Ackermanian “moment” to change? The answer is clearly “no.” But some of them are, and it is afoolish delusion, however comforting it might be, to deny or fail to teach these features of our Constitution to our students.

Obviously (and from my perspective, regrettably), many, perhaps most, students will disagree with my particular attacks on various aspects of the Constitution. That, of course, may even be true of some of the particular analyses offered by Professor Young. The importance of the kind of pedagogical reforms encouraged by Professor Young, however, is that they would bring important intellectual and conceptual issues to the attention of his students, so that they would have to grapple with his arguments and decide for themselves about their validity. It is ultimately less important that students agree with my particular critique of the presidential veto than that they realize that the limitation of the so-called “counter-majoritarian difficulty” to judicial review is intellectually bizarre and profoundly misleading about the realities of the American system if it suggests, for even a moment, that the rest of our system could any more successfully pass the test of “democracy” that is used to castigate judicial review.

The winds of change are in the air. One can only hope, perhaps audaciously, that Professor Young represents the consciousness of his generation of “constitutional law” teachers.

Sanford Levinson is W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law, University of Texas Law School, and Professor of Government, University of Texas at Austin.

Preferred Citation: Sanford Levinson, Reconsidering the Syllabus in “Constitutional Law, 118 Yale L.J. Pocket Part 8 (2008),