Academic journal article Constitutional Commentary

Why the Canon Should Be Expanded to Include Insular Cases and the Saga of American Expanionism?

Academic journal article Constitutional Commentary

Why the Canon Should Be Expanded to Include Insular Cases and the Saga of American Expanionism?

Article excerpt


All disciplines are constituted by their canons--that series of "set texts" that comprises the core materials of any given academic area. As Jack Balkin and I have written elsewhere, debates about the canon are rife in many contemporary disciplines, most notably, perhaps (at least in terms of public attention), in English and American literature, but most certainly including legal studies.(1) One can ask very generally what legal materials all law students should be exposed to, or one can ask the more limited question as to what students studying constitutional law should be expected to read. That is, what should constitute the canon of constitutional law?

Even this way of putting the question may be too broad, though, for we argue that one cannot begin constructing a set of canonical materials without first addressing the purpose of the proposed canon. Is it, for example, to teach students within the legal academy those cases (and other materials) most likely to structure their own practice of constitutional law, assuming, contrary to fact, of course, that many--let alone most--students will ever find themselves litigating a constitutional issue? Still, one could begin with the "legal fiction" that students must be aware of the most lively issues currently before courts and of the various doctrines likely to prove interesting (or at least useful) to adjudicators called upon to decide cases involving those issues. Or, again focusing on the specific needs of students preparing to become practicing lawyers, should we pick materials that are especially useful in teaching the arts of lawyering, i.e., those cases that offer especially useful examples of legal reasoning that can serve as models of the lawyers' rhetorical arts? Even cases involving no-longer-live issues could, nonetheless, serve as paradigms of such reasoning.(2) Both of these criteria, whatever their differences, involve candidates for what we call the "pedagogical canon,"(3) i.e., the preparation of students for their professional lives as practicing lawyers.

But one might have aims other than preparing persons, even those persons called "law students," for the actual practice of constitutional law.(4) After all, many undergraduate and graduate students take courses in constitutional law without intending to become lawyers. Indeed, some law students even attend law school without envisioning themselves as future legal practitioners. Yet all may well view some familiarity with the materials of American constitutional development as part of what constitutes their being educated citizens. And "official" lawyers may see themselves (and are often treated as) charged with the special task of serving as "delegates" of a sort from the particular world of law to lay outsiders, as when they are asked to give "Law Day" speeches to local schools or, more commonly, to opine at dinner parties about the propriety of what the Supreme Court is doing these days. Their teachers are thus charged with the task of identifying the canon of such materials. We label this the "cultural literacy canon."(5)

Finally, there is what we denominate the "academic theory canon," by which we identify those crucial episodes within American constitutional history that must be confronted by legal academics who wish to be taken seriously within the community of constitutional scholars.(6) Here, one is not at all concerned with what is best for one's students, treated either as preprofessionals or future citizens, but, rather, what is best for oneself as someone who wishes to establish his or her presence within an ongoing conversation among trained academics.

I want to argue that The Insular Cases(7) deserve an important place within each of these canons, though, as one might expect, the reasons are different depending on the canon to which one is referring. I should confess that I speak a bit with the zeal of a convert, for prior to an April, 1998, Yale Law School conference on Puerto Rico that I attended, I had never read the cases. …

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