Academic journal article Texas Journal on Civil Liberties & Civil Rights

The Technicolor Constitution: Popular Constitutionalism, Ethical Norms, and Legal Pedagogy

Academic journal article Texas Journal on Civil Liberties & Civil Rights

The Technicolor Constitution: Popular Constitutionalism, Ethical Norms, and Legal Pedagogy

Article excerpt

"Constitutional rights should not be frittered away by arguments so technical and unsubstantial. The Constitution deals with substance, not shadows."1

"We must never forget that it is a constitution we are expounding."2


While a law student, one of my biggest criticisms of law school teaching in general was that students were too seldom asked what the law "should be" as opposed to what the law "is." This lack of inquiry is in part a practical concern. Law schools are in the business of preparing students to practice law, and to do that, it is necessary that students learn what the law "is." Another explanation is that there is a student ethic against this sort of teaching. Many students object to the more esoteric questions and prefer to stick with the "practical." This, in turn, spills over into the practice of law, with lawyers being more concerned with the people immediately affected by the law than with the law that affects the people. And lawyers are only a small fraction of the public. The general public, presumably, is even less concerned about what the state of the law should be, unless, of course, the law directly affects them in some meaningful way.

In the areas of constitutional law and civil liberties, the idea of approaching the law in a black and white fashion, thereby deeming the court's decisions on constitutional law as the beginning and end of the discussion, is acutely problematic. Law students are reduced to learning about constitutional law by studying court opinions, memorizing end analyses, and regurgitating these analyses on law school exams. Seldom are students asked to evaluate the law in meaningful ways. The law is a "black and white" exercise: "this" is protected speech, and "that" is not. Or, so the classroom study goes. But constitutional law, with its nuances and implications not always thoroughly analyzed by the United States Supreme Court and certainly not by the average law school textbook, is not "black and white." To use a familiar buzzword of our media age, the Constitution is Technicolor.

Too often, however, students are not asked to examine the variant shades of the Constitution; they are not asked to question the efficacy of the Court's decisions. The ordinary citizen has even less impetus for searching constitutional query. A lack of meaningful popular concern, or popular constitutionalism if you will, is a sad affair for all. David Huffman, a one-time leader of the American bar, once told his students that the American lawyer should be "the asserter of right, the accuser of wrong, the protector of innocence, and the terror of crime."3 Sadly, this more philosophical role of the lawyer has been largely eschewed by modern legal education. The social impact of the law has become merely peripheral to the study of judicial decision.

In order to educate lawyers effectively, legal education must orient legal principles within the greater purpose of the law-to serve as the vehicle for a society striving to realize democratic ideals. Accordingly, Professor Lawrence Sager wrote of the fallacy of treating "the legal scope of a constitutional norm as inevitably coterminous with the scope of its . . . judicial enforcement."4 Instead, Professor Sager argued that constitutional norms are "valid to their conceptual limits."5 Indeed, some of the significant legal and social advances in our nation's history have not come from the pen of the Court in its interpretation of the Constitution but from the people's own conception of the content of constitutional norms, sometimes even in the face of contradictory proclamations by the Supreme Court.6

This criticism notwithstanding, many lawyers have been taught that a large portion of what is worth knowing about the Constitution can be learned through survey and analysis of the decisions of the United States Supreme Court. In this light, constitutional law appears as nothing more than the product of judicial fiat. …

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