Teaching Civil Liberties: Cases without Proper Context

Every political science department in the country offers some variety of courses on constitutional law and civil liberties. Sophisticated undergraduate students often raise a complaint about these courses, they are taught that constitutional doctrine changes but they aren't terribly clear on why the change occurs. Of course, this is an area in which political scientists speak with some authority and I try to work in discussions of constitutional development and theories of judicial decision-making. However, in courses such as constitutional law and civil liberties, the curricular demands of covering several hundred cases make significant tangents difficult, even tangents that are vital to contextualizing doctrinal change. Worse, by abridging some of these narratives and theories, students may get more of a caricature than "thick description."

The question is why do political scientists still offer case-intensive courses rather than those that focus on their expertise (i.e. theories of judicial decision-making or constitutional development). Undergraduate demand may be another explanation. Constitutional law courses are wellsprings for FTEs and therefore can generate significant resources for a political science department (depending on any given college's method for allocating resources). Political scientists may also enjoy playing junior law professors. After all, case law is fun to teach and the constitutional canon of cases is interesting, sexy, and, often, topical. Finally (without prejudice to other explanations), there is likely some degree of path dependence here. When political science formed as a discipline, it was closely tied to constitutionalism. As we progressed through the twentieth century, issues of constitutionalism (rightly or wrongly) were tied ever more closely to the courts. Thus, constitutionalism became conflated with constitutional law and political science followed suit (or, perhaps, played a co-developmental role--see the works of Edward S. Corwin).

For those seeking more perspective and context to understand constitutional development and change, both through judicial decree and outside of it, read Mark Tushnet's latest paper on The Rights Revolution in the Twentieth Century.