Constitutional Studies Proposal

Draft Proposal

American Constitutional Studies

1. Introduction. Despite the great interest existing in American constitutional history, the court systems, and the reciprocal effect that law has on social change, there is not a single degree-granting or certification program in constitutional studies at the graduate level in the United States. Some universities and law schools offer individual courses, but students seeking a systematic and rigorous program of study in this area will not find one. As a result, nearly all scholars who work in the field of constitutional studies are essentially self-taught.

The Supreme Court Historical Society, under a planning grant from the National Endowment for the Humanities, proposes that a consortium of schools in the Washington, D.C., Virginia and Maryland area establish a program in constitutional studies, that students from the member schools be able to take courses at the other schools, and that a seminar program, modeled along that of the Folger Institute, be established as a capstone to the consortium curriculum and also be open to scholars and students from other schools.

The role of the Society is to serve as a facilitator in discussions, and should such a consortium be established, it might also serve as a coordinating body. But it is not the intention of the Society to offer credit-bearing graduate-level courses .

2. Origins of the Project. At the behest of Dr. Maeva Marcus, the Society convened a meeting of scholars at the Supreme Court on 26 June 1997 to discuss the issue, to determine whether a problem really existed, and if so, what might the next steps be. While all of the participants agreed that a problem existed, there was no consensus on what the remedy would be. In addition, some of the basic structural and cultural differences between those in law schools and those in liberal arts programs made it unlikely that a program based in either a law school or an academic department would succeed. To create an internally consistent program, we would have to borrow from both law school and the liberal arts, and create a setting in which both would be comfortable and could cooperate.

3. What Do We Mean by Constitutional Studies? We have used the phrase constitutional studies because we hope that the program will encompass not just law or history or political science, but take an interdisciplinary approach that will borrow the best from individual disciplines and then meld them into a unified whole. One of the most exciting developments in legal studies in the past two decades has been the realization that law does not stand alone, but has vital interactions with other disciplines. The "law and economics" movement led the way, but since then we have seen "law and literature," as well as law components of "critical race theory" and "feminist theory." There have long been courses (although not in great number) in legal sociology as well as philosophy. As can be seen by the proposed curriculum, we plan to incorporate basic elements already in place, but then tie them together through advanced course work and seminars that go beyond traditional disciplinary boundaries.

4. Rationale for Constitutional Studies. The United States Constitution pervades every aspect of our lives as citizens. It informs the distribution of political power, the creation of law, the course of economic development. and the very nature of our society. It is the oldest and most successful written covenant of government in history, revered as a symbol of liberty. As a nation, however, we are abysmally ignorant of its origins in history, its substance and its effects on our polity and society.

Nevertheless, our colleges and universities, at both the undergraduate and graduate levels, fail to provide in-depth study of this singular charter. On a typical campus there may be only one faculty member whose primary interest is the Constitution. Whether located in the history or political science department or the law school, that person is likely to teach only one or two courses on the subject, typically related to constitutional law, civil liberties, and related legal topics. The emphasis upon law relegates other vital aspects of the Constitution--legislative and executive power, separation of powers, and intergovernmental relations--to separate courses with contemporary political emphasis.

Whatever the reasons for this situation, the decline in the study of the Constitution, in its broadest aspects, is untenable for the United States. More Americans must become aware of the structures and ideas underlying a free society in order to protect that freedom. Worldwide, many nations, especially newly emergent democracies in eastern Europe, Asia and Africa, look to the United States and its Constitution for guidance. We can hardly help others if we ourselves remain ignorant of our heritage.

5. The Current State of Constitutional Studies. At present, one can find courses related to constitutional studies in graduate and undergraduate departments of history and political science, and also in law schools. In some universities one may also find courses in "Philosophy of Law," "Law and Literature," and "Sociology of Law." In no school that we know of is there a deliberate, structured effort to bring all of these courses together in a coherent whole.

a. History Departments. A survey of departments of history listed in the current directory of the American Historical Association finds that out of 642 four-year colleges and universities listed, only 82 with graduate programs indicate they have someone on their faculty who teaches "constitutional history" or "legal history" as a specialty. The variety of courses taught, as in Government departments and law schools, varies enormously depending upon the interests of the faculty member, the resources available, and the demands upon that faculty to teach other courses.

There are very few history departments that teach English constitutional history, and while students may be encouraged to take courses in philosophy of law or jurisprudence, at the undergraduate level the core requirements of the baccalaureate as well as of the major preclude very much interdisciplinary study. At the graduate level there is more encouragement to take courses, especially law school courses. But law schools, with their own heavy enrollments, are often unwilling to have non-law students take up seats in popular and/or required courses such as Constitutional Law I and II.

Constitutional history as currently taught has the advantage of trying to place important Supreme Court decisions in a larger cultural and political context. The historian is interested in the long view, and in terms of tracing legal doctrine is very concerned with how that doctrine is shaped by contemporary events.

The disadvantage is that given the broad sweep of events to be covered in two semesters (or at some schools in just one), there is little time available to go deeply into doctrine. Moreover, history courses rarely venture into technical fields, despite the fact that some rather "technical" decisions are quite important.

b. Law Schools. Constitutional law is taught in law schools not only in the required Con Law course (which may be one or in some cases two semesters), but it permeates sections of federal jurisdiction, antitrust, criminal procedure, civil rights, and other courses. In most schools, Con Law I deals primarily with issues of judicial review, the Commerce Clause, and separation of powers, while Con Law II deals with individual liberties.

The advantage to studying constitutional law in law schools is that one really gets to understand the nuances of doctrine and can see how different rights can come into conflict, such as the Free Expression Clause with the Establishment Clause, or the Press Clause with the right to a fair trial. One also gets a good feel for the technical areas.

The great shortcoming of law school curricula is its presentism, its focus on what black-letter law is right now. As one law professor noted, explaining why he did not have more history in his courses, clients are not interested in paying you several hundred dollars an hour to learn why a particular rule of law developed as it did; they want to know what the law is now as applied to them. Can they build the damn thing or not?

One might also add that while many law schools have either a historian on their faculty or provide a joint appointment to someone in the history department, history plays a minor role in any law school curriculum. It is always an elective, and in some schools with writing requirements, the history course can fill that requirement. Since the job of law schools is to prepare students for the bar exams, and since bar examiners never ask history questions, one can understand, even if one thinks it is wrong-headed, why law schools are weak on the historical aspects of constitutional studies.

c. Government Departments. Constitutional studies in government or political science departments are also fairly presentist in their outlook. In courses dealing with the structure of government, relations between the states and the national government, or the powers of Congress, the President or the Courts, political scientists will pay some attention to the development of these issues, but they too are more interested in how things are today, rather than how they developed over two centuries. As for the required Con Law course, the emphasis is on doctrine, on presentism, with a little development here and there.

d. The Exceptions. In a handful of schools, such as the University of Virginia, Harvard University, the University of Wisconsin and the University of California at Berkeley, there has developed a core of faculty holding appointments either separately or jointly in history, government and law, and in these schools it is possible for a student to accumulate courses that together add up to a course of study in constitutional law. But from what we understand, these situations are unique and are very dependent upon the continued tenure of particular faculty members at these institutions. Should one or more historians enjoying joint appointments with the law schools leave, it is unclear whether the institutions have a commitment to replace those faculty with other historians.

6. An Ideal Curriculum in Constitutional Studies. If it were possible to create a new Department of Constitutional Studies, and to staff it adequately, we would suggest that the following courses could make up the curriculum:

a. Core Courses: 1. Western Legal Tradition (one semester) 2. American Legal History (one or two semesters) 3. American Constitutional History (two semesters) 4. English Constitutional History (one semester) 5. American Governmental Structure (one semester) 6. Basic Doctrines of Constitutional Law (one semester)

b. Advanced courses 1. Research Methods (one semester) 2. Historiography (one semester) 3. Individual Rights, including Rights Theory (one or two semesters) 4. The Federal Court System (one semester) 5. Comparative Constitutional Systems (one semester) 6. Judicial Biography (one semester) 7. Constitutionalism in the Political System 8. Philosophy of Law 9. Economics and the Constitution 10. The Constitution in American Culture 11. Topical Seminar (one semester; repeatable with different topics) 11. Dissertation research

The logic behind this scheme is that a student needs to know: --certain skills and concepts of research and how other scholars have studied the area (Research, Historiography, Judicial biography)) --an understanding of how the American constitutional system developed in our own country and its English antecedents (English and American Constitutional history, Constitutionalism in the Political system, the Constitution in American culture) --knowledge of how that system operates today (American Government, Basic Doctrines, and Federal Court System) --understanding of current issues and how they developed (Individual Rights, Comparative Systems, and Topical Seminar) and finally the student demonstrates the ability to put all these pieces together in a dissertation.

7. A Consortium Proposal. In going over the above list, what strikes one immediately is that while no schools have all these courses, many schools have one or more. Looking just at the graduate level, a school that has doctoral programs in history and government as well as a law school probably has courses that deal with American Constitutional History, the American System of Government, Basic Doctrines, Federal Court System, and Individual Liberties. Courses in American Legal History and English Constitutional Development are rarer, but do exist. There are no courses we know of in Historiography. The legal research that is taught as part of the first-year law curriculum is very limited and would have to be expanded upon to include the traditional original and secondary sources that are the staples of historical research, as well as more esoteric sources, such as older legal treatises.

We believe that a consortium of universities that already have graduate programs in history and government as well as law schools, if located within reasonable proximity, such as the Washington-Virginia-Maryland area, could mount a constitutional studies program. (In the Washington area there is an established Consortium of Universities, which includes American, Catholic, George Mason, Georgetown, George Washington, Howard and the University of Maryland.) But such a consortium could also operate in other large metropolitan areas where one can find a number of universities with graduate programs in history, government and law, such as Boston, Chicago, San Francisco or Los Angeles.

One might well conceive of the program on three levels. On the first level, the participating schools could agree that in the area of core courses, they would cooperate in maintaining a schedule of regular course offerings. For example, if Catholic University offered a course in American Legal History, it would be open for credit to students from all the other schools in the consortium. Instead of one school having to sustain all such courses on a regular basis, this burden would be shared by all of them.

On a second level, the schools would agree to offer or to help underwrite those advanced courses that are not regularly offered. These would include, among others, Historiography and the expanded Research Methods, English Constitutional History, as well as Comparative systems. These are not, we should note, esoteric courses, and within the Greater Washington area, again using that just as an example, are many people well-qualified to teach them.

On a third level, we propose a national program, one that would be available to students and faculty of sponsoring members, based on the Folger Institute. At the Folger men and women who come to Washington for research, and who are experts in their fields, are invited to offer a seminar under the Folgerís auspices. These seminars are open to students from the consortium schools supporting the Folger, and they get credit for those courses. In addition, the seminars are open to faculty members who avail themselves of the opportunity to study with a renowned expert in their field.

Early this year, we put out a notice of the NEH grant on H-LAW, and asked members to suggest what courses they thought should be included in such a program. Interestingly, most people did not list basic courses, but thought that the heart of such a program should be seminars in areas such as originalism, the role of the Court as a countermajoritarian institution in a democracy, etc. There is no question that highly specialized seminars will have great value; at the same time, few schools can afford to mount such courses. Here the consortium approach is admirably suited. But, and on this we want to be clear, unless the participants already have a familiarity with the basics (which is a requirement of the Folger series), exposure to advanced high-level seminars will have little value.

8. Summary. The field of constitutional studies is ripe for change. In fact, one might call it folly even to speak of a "field" as if it had an internal logic, a recognized corpus of knowledge, or a clear design for training practitioners. At doctoral-granting institutions, there is a clear pattern to how the degree is attained. In history and government, for example, one takes a mixture of required and elective courses; one is expected to know the basic research methodologies of the discipline, and to have read a certain number of basic essential works; one puts together "fields" and then takes comprehensive exams; and then one does original research, and defends the findings of that research.

In law, one takes required first year courses, a smattering of required additional courses, and then electives until the required number of credits have been attained. However the real test of the law school program, the bar exam, is neither controlled by nor administered by law schools.

Perhaps because of the long-standing tensions and suspicions between law school teachers and their counterparts in history and political science, the field we are designating as constitutional studies has remained fragmented, disorganized, and lacking any recognized body of core knowledge. It is time for that fragmentation to end. But if the consortium program is entered into with good will by all sides; if sufficient funding can be secured in its early years to give it a chance to succeed; if scholars who believe in the idea are willing to work in it--if all these "ifs" take place--then we may have a model of how to construct integrated, coherent programs in the future.

Our next steps, after we assimilate feedback from the professions, is to revise the proposal, begin the task of putting the consortium together, and perhaps offering the first seminar or two in Summer 1999. It is a cautious, and we believe, a realistic approach, but one we hope--and expect--to succeed.