The Teacher

Reordering American Constitutional Law Teaching*

Scott D. Gerber, College of William and Mary

Constitutional law is the corner-
stone of an undergraduate public
law curriculum. Political scientists
will therefore want to teach consti-
tutional law in the most effective
manner possible. To that end, there
is a welcome trend to offer consti-
tutional law as a two-semester se-
quence, a trend reflected by text
authors and publishers who are in-
creasingly dividing their constitu-
tional law texts into two parts
(Mezey 1993, 2). I say welcome
trend because, as anyone who has
taught constitutional law knows,
there is too much material to cover
adequately in one semester.

Traditional Constitutional
Law Teaching: Powers First

Invariably, constitutional law
courses begin with constitutional
powers issues: the origins and
scope of judicial review, Congress
and the development of national
power, the powers of the presi-
dency, the modern administrative
state, the states and American fed-
eralism, and representation, voting,
and electoral politics. In two-se-
mester courses, these issues are
addressed in the fall. In one-semes-
ter courses, they are covered in the
first part of the semester.

After the powers issues have
been addressed, attention is then
turned to constitutional rights is-
sues: property rights and economic
liberty, freedom of expression, as-
sembly, and association, freedom
of the press, religious liberty and
church-state relations, criminal jus-
tice, personal autonomy and pri-
vacy, and equal protection. In two-
semester courses, rights issues are
addressed in the spring. In one-

semester courses, they are covered
in the second part of the semester.

The rationale for teaching consti-
tutional powers before constitu-
tional rights seems to be, first, that
the Bill of Rights and the Four-
teenth Amendment, the bases for
the vast majority of rights ques-
tions, were not part of the original
Constitution and, second, that stu-
dents need a foundation in constitu-
tional powers before they can un-
derstand constitutional rights. In
the spirit of more effective teach-
ing, I would like to suggest that
undergraduate teachers reverse the
order in which constitutional law is
taught. Although this suggestion
may strike many traditionalists as
heresy, it has proved to be an ef-
fective pedogogical technique in my
courses. In fact, I have gone so far
as to require the constitutional
rights course as a prerequisite for
the constitutional powers course.

Reordering Constitutional
Law Teaching: Rights First

The justification for reordering
constitutional law teaching is sim-
ple: students learn the material bet-
ter if rights issues are taught first.
This is because constitutional rights
questions are more intuitive to stu-
dents than constitutional powers
questions. The American people—
undergraduate students included—
are imbued with the idea that indi-
viduals have rights, an idea that is
at the heart of the American politi-
cal tradition. "We hold these
Truths to be self-evident," Thomas
Jefferson wrote in the Declaration
of Independence, "that all Men are
created equal, that they are en-
dowed by their Creator with certain
unalienable Rights; that among

these are Life, Liberty and the Pur-
suit of Happiness."

With respect to constitutional
law specifically, although for much
of American history the Supreme
Court's docket was dominated by
powers questions—Marbury v.
Madison (1803), M'Culloch v.
Maryland (1819), Gibbons v. Ogden
(1825), Cooley v. Board of Wardens
(1852), United States v. E.C.
Knight Company (1895), and
A.L.A. Schechter Poultry Corpora-
tion v. United States (1935), to
name but a few of the classic cas-
es—that changed in 1937 when the
Court, under the threat of President
Franklin D. Roosevelt's infamous
"court-packing" plan, stopped
striking down the New Deal and
redirected its attention to protect-
ing civil rights and liberties. In-
deed, ever since the "switch-in-
time-that-saved-nine," rights
questions have far outnumbered
powers questions on the Court's
docket (Pacelle 1991). The late
Herbert J. Storing made the point
well a decade and a half ago. "[I]t
seems quite plausible today," Stor-
ing remarked, "when so much of
constitutional law is connected with
the Bill of Rights, to conclude that
the Antifederalists, the apparent
losers in the debate over the Con-
stitution, were ultimately the win-
ners" (Storing 1978, 32). As a con-
sequence of the rights-oriented
character of both American politi-
cal culture and modern American
constitutional law, I have found it
easier to introduce students to the
sometimes confusing subject of
constitutional law, as well as to the
daunting task of reading Supreme
Court opinions, through issues with
which they are more familiar and
more comfortable: rights issues.

December 1994 703



The Teacher

Lessons from Contracts Law

As strange as it may sound, my
recommendation to reorder consti-
tutional law teaching owes much to
my former law school contracts
teacher, Stanley D. Henderson. In
his contracts course and accompa-
nying casebook, Henderson takes
the bold step of teaching the rules
governing remedies for breach of
contract (e.g., damages, reliance,
and restitution) before the rules
governing contract formation (e.g.,
offer, acceptance, and consider-
ation) (Dawson, Harvey, and
Henderson 1987). Critics of Hend-
erson's approach argue that a con-
tracts course must begin with the
rules governing contract formation.
After all, the argument goes, reme-
dies questions cannot arise unless a
contract is formed. According to
Henderson, however, it is easier
for students to learn the complex
world of contracts law through a
remedy-centered approach. This is
because students are more familiar
from their everyday experience
with what happens if they breach a
contract than they are with the
technical rules required for them to
form a contract (ibid., xxii). As
anyone who has had the good for-
tune of taking Henderson's con-
tracts course or of using his top-
selling contracts casebook can
attest, Henderson's unconventional
approach, in which he teaches con-
tracts law "backwards," works
splendidly.

Although contracts law and con-
stitutional law have little in com-
mon substantively, they have much
in common pedogogically. Like the
rules of contract formation, ques-
tions of constitutional powers are
frequently obscure and confusing to
students. By contrast, like the rules
governing remedies for breach of
contract, constitutional rights ques-
tions are quite familiar and under-
standable to students, exposed as
students are to discussions about
abortion and the rights of those ac-
cused of crime, for instance, in the
everyday discourse of American
life. Indeed, I venture to say that,
before students step into a constitu-
tional law classroom, few, if any,
have been exposed to questions
like whether the legislative veto is

constitutional, while many have
heard about—and possibly even
discussed—"hate speech," to name
but two typical examples of the
constitutional powers/rights dichot-
omy.

Some Suggestions for
Teaching the Rights Course

My reordered constitutional law
sequence does not simply entail
teaching the material traditionally
offered in a constitutional rights
course before the material tradi-
tionally offered in a constitutional
powers course. Although the vast

My classroom discussion
of the rights-oriented
character of American
political culture is not
limited to the American
Founding. . . I also turn
the class's attention to
the contemporary debate
over whether we are too
rights-oriented in the
United States.

majority of what I teach in the con-
stitutional rights course is tradi-
tional constitutional rights materi-
al—most notably, landmark cases
like Lochner v. New York (1905),
Schenck v. United States (1919),
New York Times v. Sullivan (1964),
Wisconsin v. Yoder (1972), Everson
v. Board of Education (1947),
Mapp v. Ohio (1961), Gideon v.
Wainwright (1963), Furman v.
Georgia (1972), Griswold v. Con-
necticut (1965), Roe v. Wade
(1973), Bowers v. Hardwick (1986),
Brown v. Board of Education
(1954), Frontiero v. Richardson
(1973), and Regents of the Univer-
sity of California v. Bakke (1978)—
I spend the first several class ses-
sions discussing the central place of
rights in American political culture

in the hopes of setting the appropri-
ate mood for the course.

I begin by examining the Decla-
ration of Independence, the found-
ing document of the American re-
gime. Indeed, in correspondence
with James Madison about the Uni-
versity of Virginia's curriculum,
Thomas Jefferson put the Declara-
tion at the top of his required read-
ing list for government and law stu-
dents (Hellenbrand 1990, 164).
While it is certainly not my objec-
tive to turn the constitutional rights
course into a political philosophy
course, I try to give my students a
general understanding of the politi-
cal ideas of the Declaration—and
as the students quickly come to
appreciate, rights are at the heart
of those political ideas.

I follow the discussion of the
Declaration of Independence with a
discussion of the debate over the
ratification of the Constitution.
Here, I remind the students that
the absence of a bill of rights from
the proposed Constitution framed
in Philadelphia in 1787 nearly led to
the Constitution's defeat, a point I
illustrate with some revealing
quotes from leading Antifederalists
like Mercy Otis Warren, Luther
Martin, George Mason, and Patrick
Henry. I also invoke the name and
forceful language of Thomas Jeffer-
son, author of the Declaration of
Independence. Jefferson was ini-
tially a reluctant supporter of the
Constitution, I explain, and one of
his most famous letters to Madison
tersely said why. "[A] bill of
rights," Jefferson wrote, "is what
the people are entitled to against
government on earth, general or
particular, and what no just govern-
ment should refuse, or rest on in-
ference" (Peterson 1975, 430).

I close my discussion of the rati-
fication debate by explaining to the
students that, in the end, the An-
tifederalists prevailed in the debate
over the Bill of Rights, and the
Constitution was ratified only be-
cause the Federalists promised to
add a bill of rights at the first op-
portunity. That promise soon was
fulfilled by Madison in the first
Congress, with Madison's change
of heart largely being attributable
to his recognizing the importance
to the American people of securing

704 PS: Political Science & Politics



Reordering American Constitutional Law Teaching

their rights. I quote Madison's clos-
ing remarks in his June 8, 1789,
speech to the U. S. House of Rep-
resentatives advocating the adop-
tion of the Bill of Rights to demon-
strate the point. " I think we should
obtain the confidence of our fellow-
citizens," Madison argued, "in
proportion as we fortify the rights
of the people against the encroach-
ments of the Government" (Meyers
1983, 175).

My classroom discussion of the
rights-oriented character of Ameri-
can political culture is not limited
to the American Founding, impor-
tant as that period in our history is
for defining who we are as a nation.
I also turn the class's attention to
the contemporary debate over
whether we are too rights-oriented
in the United States. I discuss both
the provocative scholarship of con-
temporary communitarians like
Amitai Etzioni (1993) and Mary
Ann Glendon (1991) and the com-
munitarianism of our current presi-
dent, Bill Clinton.

Most significantly, I alert the
class to the majoritarian and com-
munitarian inclinations of today's
conservative Republican Court. In
stark contrast to the post-1937
Roosevelt and Warren Courts, I
suggest, the Republican Court ap-
pears to reject the idea that the
Constitution commissions the Court
as the institutional protector of in-
dividual rights. I use the "peyote
case," Employment Division v.
Smith (1990), as an example.
There, Justice Antonin Scalia, writ-
ing for a sharply divided Court,
made the startling pronouncement
that the values enshrined in the Bill
of Rights—individual religious lib-
erty, in particular—are not immune
from definition by the political pro-
cess. My objective at this point in
the course is not to engage the stu-
dents in an extended exegesis on

religious liberty, but rather to use
the case as a vehicle through which
they can begin to acclimate them-
selves to constitutional law, as well
as to reading Supreme Court opin-
ions. That foundation laid, the stu-
dents are ready to enter the fasci-
nating world of American
constitutional law.

Conclusion

In suggesting that constitutional
law teaching needs to be reordered,
I do not mean to imply that consti-
tutional powers questions are less
important than constitutional rights
questions. My goal is simply to
help students learn constitutional
law better. In my experience, the
order in which constitutional law is
taught does not affect students'
ability to learn the constitutional
rights material. For the reasons dis-
cussed above, students have little
trouble with the rights material,
regardless of whether that material
is presented first or second.

With respect to constitutional
powers, however, students learn
that material much better if they
have had an opportunity to accli-
mate themselves to thinking about
constitutional law and to reading
Supreme Court opinions through
the more accessible constitutional
rights material. Hence, my ration-
ale for teaching constitutional rights
first. After all, our objective as
teachers should be to help students
learn—even if that means reorder-
ing a subject as dear to political
scientists as constitutional law.

References
Dawson, John P., William Burnett Harvey,

and Stanley D. Henderson. 1987. Cases
and Comment on Contracts. 5th ed. Min-
eola: Foundation Press.

Etzioni, Amitai. 1993. The Spirit of Commu-
nity: Rights, Responsibilities, and the
Communitarian Agenda. New York:
Crown.

Glendon, Mary Ann. 1991. Rights Talk: The
Impoverishment of Political Discourse.
New York: Free Press.

Hellenbrand, Harold. 1990. The Unfinished
Revolution: Education and Politics in the
Thought of Thomas Jefferson. Newark:
University of Delaware Press.

Meyers, Marvin, ed. 1983. The Mind of the
Founder: Sources of the Political
Thought of James Madison. Revised ed.
Hanover: University Press of New Eng-
land.

Mezey, Susan Gluck. 1993. "Introduction to
the Law and Politics Book Review."
Law and Courts Newsletter. Spring.

Pacelle, Richard L., Jr. 1991. The Transfor-
mation of the Supreme Court's Agenda.
Boulder: Westview Press.

Peterson, Merrill D., ed. 1975. The Portable
Thomas Jefferson. New York: Penguin
Books.

Storing, Herbert J. 1978. "The Constitution
and the Bill of Rights." In Essays on the
Constitution of the United States, ed. M.
Judd Harmon. Port Washington: Kenni-
kat Press.

Note
•Thanks to J. Timothy Collins for helpful

comments. This article is dedicated to
Stanley D. Henderson.

About the Author
Scott D. Gerber is
visiting assistant pro-
fessor of government
at the College of Wil-
liam and Mary. He
has published articles
on constitutional in-
terpretation, on Clar-
ence Thomas, and on
American political
thought. His book,
To Secure These Rights: The Declaration of
Independence and Constitutional Interpreta-
tion, will be published by New York Uni-
versity Press in March 1995.

December 1994 705