• Video

Text, Structure, and History in Constitutional Law Casebooks

What elements make a good constitutional law casebook? Professor Lee Strang explains why he prefers a casebook with strong textualist arguments that closely examine the history and structure of the Constitution and the law. Professor Strang also discusses the merits of a balanced discussion of Supreme Court jurisprudence from a neutral rather than a cynical viewpoint. https://youtube.com/watch?v=1HnpNMu56-E


One of the things that prompted me to try to draft my own, to write my own, to edit my own casebook was that my perception was that that many of the legal scholars, in good faith, I think missed the mark in giving, just due to giving equal access to all the different arguments that are made in contemporary American constitutional jurisprudence. In particular, my perception was that many of the casebooks gave short shrift to arguments from text structure in history - the paradigmatically originalist type of arguments. And so one of the key commitments to my casebook, to the casebook that my co-editors and I edit is that we try to make sure that all the arguments, all the standard arguments in American constitutional law get play, get equal hearing, get equal criticism as well. So our goal is to be as fair as possible. We're humans, so we don't always succeed, but we try to be as fair as possible in achieving the goal of equal access to different types of arguments, the kind of arguments that the students in my class, the students in Constitutional Law are going to want to know because their goal as advocates is going to be persuade judges that their client's position is correct. Different judges are more open to or amenable to or hostile to different types of arguments. And so having before him or herself, all the different kinds of arguments, and then understanding what arguments are going to be most effective for this judge or justice, allows that attorney, that law student to become an attorney who is most effective. So that was one main goal was making sure that all different sides and all different arguments were given an equal hearing. There's a second main goal. It's often been the case in my experience in looking at constitutional law casebooks that the casebook editors intentionally or otherwise take what I would characterize as a relatively cynical view of the exercise of the Supreme Court of its power of constitutional interpretation. And it is the case that there are some instances where one should be cynical. So I don't want to deny that there's warrant in some instances for the view that the Supreme Court intentionally in some instances misinterpreted the constitution, but at the same time, I think that when you look at the scope of 220 years of Supreme Court jurisprudence, what you see are men and women in good faith with a lot of capability, in many instances, struggling with, trying to come up with, the correct interpretation of the constitution and applying that interpretation faithfully in the context of the cases provided to it. And so we try to provide a portrait of a Supreme Court as an institution in good faith, trying to implement the Constitution through its Constitutional doctrine. And we identify situations where it might be warranted to be cynical of the arguments made by a particular justice or by a majority. But at the same time as an overall project, recognizing that the Supreme Court has done in many instances, a really fabulous job, creating Constitutional doctrine to implement the Constitution's meaning.

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