New Essay: Coping With a Court One Disagrees With

Randy Barnett and I have written a new essay, titled Coping With a Court One Disagrees With. This essay was inspired, in part, by a recent New York Times article that identified a “crisis” in teaching constitutional law. In our view, there is no crisis. But we can relate with professors who are having difficulty teaching decisions they disagree with. We’ve done it for the entirety of our careers. We suggests that our method of teaching may be useful for liberal and progressive professors who are having trouble coping with the current court.

Here is the abstract:

Is there a “crisis” in teaching constitutional law? In our view, there is not. Still, we can empathize. As libertarian-conservative-ish law professors, for years we taught Supreme Court decisions that we disagreed with. We teach constitutional law as a historical narrative that began at the founding and continues to this day. The narrative approach underscores the contingent nature of what at any given time appears to be fixed and unchangeable. The narrative also remains remarkably stable from year to year even as new cases are added. This approach also makes preparing one’s syllabus relatively easy to do each year, regardless of what the Supreme Court may have decided in its most recent term.

The pedagogy we developed was premised on a Supreme Court jurisprudence we largely disagreed with. Indeed, we still disagree with much of this jurisprudence, especially the cases that were decided right before, during, and after Reconstruction. While some of these cases, like Prigg, Dred Scott, and Plessy are now in the anti-canon, others like Slaughter-House, Cruikshank, and the Civil Rights Cases remain good law. This pedagogy worked before 2016 and it will continue to work no matter what happens in the future. We submit that the time is ripe for liberal and progressive professors, especially those who are having trouble coping with the current Supreme Court, to consider adopting our narrative approach to the constitutional canon and anticanon.

Part I of this essay focuses on our approach to teaching the constitutional cannon. Part II traces the evolution of our casebook from the First Edition to the Fourth Edition, and previews the forthcoming Fifth Edition. We demonstrate that the narrative about the development of the constitutional canon has remained remarkably stable. Even after accounting for the recent terms, our syllabus will be about 90% the same as it was in 2019. Part III addresses how we, and other like-minded law professors, managed to teach decisions that we fundamentally disagreed with. For those professors who are pained by the Supreme Court’s current doctrines, our narrative approach provides succor. Such professors can, for example, teach what they believe to be “the good old days” of the Warren and Burger courts in contrast to what now exists. Students can then decide for themselves which era they prefer.

We welcome comments. And if any professors are interested, we are happy to provide review copies of our casebook for adoption.

We are also pleased to report that the twelve-hour video library from An Introduction to Constitutional Law will soon be posted on YouTube at no-cost, courtesy of the Foundation for the Constitution.

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