Adam Liptak’s latest Sidebar column, which considers how constitutional law professors are updating their syllabi to discuss all things Trump, raises important pedagogical questions: To what extent should a 1L class on constitutional law cover current events?
Every semester, I devote a single class to a timely constitutional question. In the past, I’ve focused on same-sex marriage (before Obergefell) or President Obama’s executive action on immigration. This semester, I added a new class on Presidential privileges and immunities focusing on Nixon v. Fitzgerald and Clinton v. Jones, topics I never felt the need to teach before. But beyond this single topical class, I try really, really hard not devolve 1L constitutional law devolve into a current events seminar.
First, there is a practical reason: there is only a finite number of class hours. (We have only four hours to teach the entirety of structure and rights.) The more time we spend on current events, the less students will have to learn the basic building blocks of constitutional law. Upper-level seminars are flexible, and well-suited to handle breaking events. In 1L ConLaw, however, every deviation from the syllabus results in my inability to teach what is assigned. I take personal pride in sticking to my syllabus every class, so students always know what will be covered. Where it is relevant, I will take a slight detour, but in five years, I haven’t fallen behind once.
Second, in the heat of the moment, it is hard to know what is important in the long term. Serving as the co-editor on a constitutional law casebook has helped reinforce this lesson. When preparing a new edition, we are faced with the tough questions of which cases to add, which cases to subtract, and which new cases to let simmer for a bit in the supplement. For example, for decades Bakke was essential in any chapter on the Equal Protection Clause. Was it still needed after Grutter and Gratz? What about after Fisher I and II? Cases fall into and out of the canon based on the perspective of years and decades, not weeks and months. No matter how fast our world is moving now, I cannot say which issues will stick. Will anyone care about the Foreign Emoluments Clause in five years? What about the President’s self-pardon power? Or state-court indictments of the President? Or the Take Care Clause? These issues were all previously obscure, and perhaps after the current situation concludes, they will fade back to obscurity.
There is a third reason for avoiding the current events model of constitutional law: it is much harder to teach cases that personally affect people. When learning about cases decided in the past, there is no live controversy. Invariably, students on the right and left side of the issue will take sides, but the class can assume a level of detachment. This is healthy. When the issue is live, that detachment becomes impossible. In my experiences, teaching the constitutional issues concerning same-sex marriage became much easier after Obergefell. Beforehand, there were raw emotions on both sides of the dispute that made it really difficult to engage all students. As an educator, I wasn’t as effective as I wished I could be. But once Obergefell was decided, that task has become much easier.
Finally, there is a cost to focusing on the kinetic issues of the day: alienating large segments of the class. I haven’t performed a survey, but I suspect my students in Houston are roughly evenly split along the political spectrum. (That breakdown will certainly vary by location). From 2014-2016, during classes that centered on President Obama’s action, I could sense a different political valence in responses from certain students. Likewise, in classes last spring that focused on President Trump’s actions, I sensed a different political valence in responses from other students. This is inevitable. As someone who tends to be in the political minority of most scholastic disputes, I am especially attuned to this dynamic, and try to minimize it in class. Focusing on the canonical cases, and not leaping at the vicissitudes of the day, diminishes these dynamics.
These topics would work very well in an upper-level seminar, one in which the syllabus could be written week-by-week, and where students know what they are getting themselves in for.