Toward the Study of the Legislated Constitution

Abstract

Law schools, both innovative and traditional, cutting edge and hidebound, demand and therefore teach tolerance, civil respect for those whose views and dreams differ from our own, a commitment to the equal dignity of all persons, an awareness of the individuality of each of us, and the challenges that those differences and that equality pose to the generalizing impulse in law. Likewise, law schools, virtually everywhere, convey or should convey a sensitivity to bare or naked human vulnerability, mortality, weakness, and need, and therefore a sense in students of the moral need of all of us for law’s protection, as well as the challenge of creating it justly and in a way that is not overly intrusive of our privacy or liberty. All of these legal values are deeply embedded in law schools’ curriculum, pedagogy and faculty scholarship, and all of them have helped to forge a profession that for its known flaws has structured a morally sound body of rules for all of us to live within. That legal education so well reflects these values is very much to the credit of legal educators. They are values in which we should take pride, when we impart them successfully. They are central to the way we enculturate as well as educate: when we impart them successfully they become a part of the fabric of what it means to be a lawyer, a professional, and a member of the Bar or the Bench. They constitute the culture of lawyering, and specifically the moral culture of lawyering, that we pass on in law schools from one generation of lawyers to the next. There is much in this tradition of which legal educators should be proud.

In this article the author focuses on one aspect of that acculturation that she believes is deeply problematic, and that is the century-long, near-exclusive orientation of legal education, and legal scholarship, around a judicial — rather than a legislative — perspective.

The author first looks at juriscentricity in three central poles, or gravitational foci, of legal education: jurisprudential scholarship, constitutional scholarship, and what she calls legal culture. The author looks at these three corners of the legal academy by focusing exclusively on the pathologies to which they give rise, without denying that they also reflect moments of great insight and even some measure of moral courage. Then in the concluding part she proposes a thought experiment: that we re-examine the questions and assumptions of jurisprudence, of constitutional law, and of legal culture, by imagining the legislator — rather than the judge — as the hero, villain, or protagonist of our collectively shared “law stories” — the narratives by which we teach law and acculturate our students into the profession. She proposes that we assume the existence of and the worthiness of study of a legisprudence, rather than a jurisprudence, a legislative and legislated, rather than adjudicative and adjudicated Constitution, and a legis-legal rather than a juris-legal culture. The author concludes with some practical proposals for reform of the legal academy’s practices, and their potential impact on our current political stalemates.

Keywords: juriscentric practice, jurisprudential scholarship, constitutional scholarship

JEL Classification: K00, K10, K19