Neglected Policies: Constitutional Law and Legal Commentary as Civic Education
Baer, Judith, Justice System Journal
Neglected Policies: Constitutional Law and Legal Commentary as Civic Education, by Ira L. Strauber. Durham, NC: Duke University Press, 2002.
In the old days, political scientists studied and taught constitutional law much as law schools did: by reading, briefing, and discussing cases. One famous teacher insisted that the most important question in a student's brief was: "How would you have decided this case?" Once the behavioral revolution hit the judicial field, some enthusiasts preferred counting votes to reading cases. This way of studying law has produced two conflicting models of judicial decision making: the attitudinal, which maintains, not without empirical support, that judges' votes reflect their policy preferences, and the legal, which stresses precedent and doctrine. At present, the attitudinalists appear to have the advantage.
Ira Strauber presents yet another pedagogical approach. He criticizes the "interpretive community" (teachers and critics) for overemphasizing "the ideology of involvement," "the law's formalisms," or both (p. 1). His preferred approach is an "agnostic skepticism" that emphasizes "commonplace contingent and/or circumstantial social-fact, social-scientific, and consequentialist considerations" (p. 2). The underlying premise (though not necessarily the conclusion) of agnostic skepticism is that there are no right answers or perfect rules.
This "middle course" employs hypothetical questions and stresses the "underdeterminacy" (p. 3) of ideology and formalisms. Agnostic skepticism discourages unwarranted certainty and promotes civility and tolerance. An interpretive community guided by agnostic skepticism will do a better job of civic education; people trained in these habits of mind will make better citizens. The last chapter asserts that "teachers and critics should link legal and political lessons (like those taught here) to people's mundane concerns about private relations" (p. 220). The author's failure to develop this idea is the book's only disappointment.
Strauber is realistic about the limited prospect of civic educators substituting agnostic skepticism for the traditional classroom arguments over abortion and capital punishment or the equally familiar formal analysis of interstate commerce doctrine. …