Outside Counsel

This teaching Constitutional Law thing is proving to be an interesting challenge, because I am making a conscientious effort to teach it as a class about how the US government functions rather than a course about law per se. I suppose it's a fine distinction, and one that may only matter to me, but as I have geared up for this course one of the things that I think I have come to realize is that there is a distinct lawyerly bias to the way that we approach the subject. The American jurisprudential tradition is common law, and common law is at its root based in storytelling, anecdotage, parables about disputes and how they were resolved. "The life of the law has not been logic, but experience."

That's fine, and certainly it is an important and useful way for lawyers to understand the Constitution, but since I am not-- in this class-- training lawyers, I want to do it differently. The textbooks and hornbooks and commentaries all start with Marbury v. Madison, because, I think, Marbury established the concept of judicial review of constitutionality, and thus establishes that the proper methodology for the study of constitutionality is through the filter of the judicial decision making process. I see several problems with this. First, it seems to elevate the courts, and particularly the Supreme Court, to a level of superiority over the other two branches that the text of the Constitution certainly does not support. More notably, because the federal courts in our system can only resolve cases and controversies they are necessarily involved exclusively in examining and deciding situations that are, virtually by definition, outliers. Life on the edges may be more interesting-- I'd be a fool to dispute that-- but the frontier is not where most of us live or work or interact with our government. I think that if my goal is to teach how government operates I need to be starting in a place that is different from the way I was taught Constitutional Law.